Submitted to the BRI Inquiry September 1999
Published on BRI website November 1999

Introduction

The Local Resolution - First Phase

The Independent Review - Second Phase

The Ombudsman's Review - Third Phase

Conclusion

References

SIN was formed by patients and relatives of patients who have suffered as a result of inappropriate medical treatment and subsequently questioned and/or complained about their medical care, which has resulted in genuine on-going specialist care being compromised although the directive is clear in the NHS Complaints Procedure guidelines, produced by the D.o.H. page 17 section 5.4:

" before doing anything else - ensure that the patient's immediate health care needs are being met - "

" the patient must always come first": Patients' Charter

The following examination of the NHS Complaints Procedure was compiled from evidence supplied by members of SIN and has since been corroborated by other patients and their relatives.
 The NHS Complaints Procedure, as set out in the D.o.H. Guidelines, is sound in theory and if it were properly implemented Trust hospitals and Health Authorities do have the power to expose very serious matters and the sanctions to instigate against any incompetent or malpractising health professional.:(a)disciplinary proceedings 

(b) referral to professional regulatory body eg GMC for professional misconduct including medical negligence 

(c) criminal proceedings

(d) to call for an Independent Government Inquiry into a any serious incident - 

However, in practice, based on the experience of many aggrieved complainants, it is simply a cruel time- wasting, paper chasing farce, for these sanctions are rarely, if ever enforced.Once a complaint has been received by a Trust / Health Authority the common experiences include:

(a) refusal to confirm neutrality, which is a prerequisite of any Complaints system

(b) procrastination- : compulsory time scales ignored (it is suggested 3 years to prevent legal action) 3 months to acknowledge receipt of letters - some never acknowledged.

(c) serious issues never addressed - especially if they involve clinical competence

(d) Once a clinical statement has been made, it appears to be an impossibility to have unfounded "opinions" retracted - even where the patient provides factual evidence to the contrary and indeed even if the inaccurate information puts the patient's life at risk.

(e) Medical records, when eventually accessed, are often unstable, incomplete and in the opinion of many patients have been changed. Such serious matters are ignored.

(f) Chief Executives rarely give appointments. They sign statements although seldom present at meetings.Footnotes:
¹ NHS Complaints Procedure D.o.H. Guidelines : p.17 section 5.4 (p6)
²NHS Complaints Procedure D.o.H. Guidelines: p 14 section 4.32 (p.3) & Append.6 p. 26
 

If the complaint is against a GP a Lay conciliator can be used, but only if the GP agrees. Patients have the burden of putting down everything in writing, however, the GP is exempt from this. Hardly a fair system. The Complaints System, amazingly, verified that it was in order for a GP to muddle up the medical records of two patients with the same name, and so allow one of the patients to leave the area with the other patient's confidential records of a serious medical condition. After taking the complaint before the Medical Service Committee and even to FHS Appeals Authority, the conclusion was that the GP had breached no terms of service and had behaved to the general standard to which all GPs could be expected to perform. Not even an apology was offered.
 When a Trust is involved it is not obliged to arrange a meeting with the patient and the health professional in question, although it is difficult to see how a very serious complaint can be "fully investigated" without recourse to a meeting. If a meeting is granted at this stage, the doctor in question is not obliged to attend. Records of such meetings, when issued, are a travesty: muddled, with omissions and fabrications and only issued with the approval of clinicians, and signed by the non-attendant Chief Executive. The patient is unable to challenge or amend this statement.
 The statutory requirement is for records of these meetings to be issued within 20 working days. This is often breached ( waits of two years have been recorded). It is known that even when meetings are taped with permission by the patient, the mandatory statement fails to materialise which is to the obvious advantage of the Trust and to the disadvantage of the patient, who is thus denied valuable clinical statements and is also unable to continue to the next stage.
 Evidence shows that some patients are uninformed/misdirected about the next stage of the complaints procedure ie Independent Review . Without official written confirmation from the Trust that the Local Resolution stage is finished, the patient is prevented from advancing to the next stage. One patient had 3 IRs thwarted by improper procedures. One patient was incorrectly told she had had a Review.
 

1. An Independent Review Panel (IRP) is ³set up at the discretion of a non-executive member of the Board ( the Convener), and an unnamed independent lay chairperson and a non-executive member of the local Health Authority. Although the complainant submits a statement of his/her concerns, ⁴it is the Convener who sets out the terms of reference for the IR, not the patient. ⁵Almost certainly, the Convener ( who is hardly impartial) will require advice on clinical aspects of the complaint. ⁶Such advice is supplied by the Trust's Medical /Nursing Director and therefore he/she ultimately has the power to veto an IR. Just how independent is an independent review?

 
2. If an IR is agreed, the patient meets with the appointed, ⁷independent assessors (consultants). The aggrieved complainant is able to bring up relevant issues and the meeting can be taped. However, he/she is not usually allowed to challenge the doctors against whom the complaint is made. Having listened to the victim, the assessors then discuss the matters raised in a separate room with the doctor(s) in question. ⁸The assessors are not obliged to keep verbatim notes and the patient has no right to see any minutes from this meeting. ⁹A draft report is sent to the patient who can make amendments. ¹⁰The aggrieved complainant receives a Trust approved report of events and any recommendations.

 
3. The IR, which the complainant believes will to be able to expose clinical incompetence and malpractice is, in reality, impotent, being unable to refer any individual for disciplinary action or to a professional regulatory body: the ¹¹IR is not disciplinary or punitive in nature. It is the Trust / Health Authority which have these executive sanctions, and if these bodies fail to use this power to exert accountability and quality control at the Local Resolution Stage, then the succeeding phase of the Complaints System will usually be a mere formality,¹² for it would be assumed that no such action was felt by the Trust to be necessary. Ironically, although, the patient believes that going to stage two and three the power of sanctions will increase, the reverse is true. In short the Trust/Health Authority is judge and jury with regards to accountability.

 Footnotes:
³ NHS Complaints Procedure D.o.H. Guidelines:p24 paras:6.7; 6.8; (p.8)
⁴ NHS Complaints Procedure D.o.H. Guidelines: p24 para: 6.10 (p.8); p.29 para 7.1(p.12);
⁵ NHS Complaints Procedure D.o.H. Guidelines: p25 para. 6.16. (p.9); p29 para 7.2.(p.12);
⁶ NHS Complaints Procedure D.o.H. Guidelines: p26 para 6.18 (p.10)
⁷ NHS Complaints Procedure D.o.H. Guidelines: p 32 para. 7.13 (p.15); p31 para. 7.9 (p.14);
⁸ NHS Complaints Procedure D.o.H. Guidelines: p 31 para 7.12 (p.14); p35 para.7.26 (p.17);
⁹ NHS Complaints Procedure D.o.H. Guidelines: p.35 para.7.30 (P.17);
¹⁰ NHS Complaints Procedure D.o.H. Guidelines:p35 para. 7.31 (p18);
¹¹ Append 10 letter from Trent NHSE 32;
¹² Append 10 letter from Trent NHSE p32;

¹³If a complainant is refused access to an IR or was granted one and is dissatisfied with the outcome, he/she may complain to the Ombudsman, indeed Trusts actively encourage the patients to take grievances to this Office, which soon becomes overloaded. ¹⁴The HSCO is able to deal with maladministration and since 1^st. April, 1996, matters relating to clinical judgement. ¹⁵The Office is there to protect the complainant from hardship and injustice which may have been experienced at the earlier stages. ¹⁶The Ombudsman has no jurisdiction over disciplinary matters but can refer clinical negligence to the GMC. No one has heard of the HSCO doing this.
 In reality the HSCO has total discretionary powers not to investigate a complaint however serious it is. It would seem that the cop out clause is in the Act Section 4:- ¹⁷"A Commissioner shall not conduct an investigation in respect of action in relation to which the person aggrieved has or had :-(b) a remedy by way of proceedings in any court of law."If this is the reason for not investigating a complaint then, surely, it should be clearly stated?
 This would seem to suggest that the more serious complaint, the less likely is the Commissioner's Office to deal with it. However, if a complainant cannot afford to go to law, and approximately 75% must be in this position - what happens to all the malfunctioning/ malpractising doctors and managers?
 From experience it is known that the HSCO does not deal in sequence with all complaints, indeed many are ignored even though they are repeatedly submitted. The HSCO can terminate an investigation unfairly on hearsay evidence only, without obtaining written verification of the wishes of the complainant. Although the HSCO is forbidden to make contact with the Trusts if a complaint is not being investigated, this is breached. At the end of the day the HSCO may state "concern" that an IR was terminated unreasonably; "concern" that the patient was denied access to medical records and complaints file; and "concern" that the Code of Openness was not implemented - but no sanction was invoked except to refer the whole process back to the Trust for re-appraisal at the Convener stage. Otherwise the patient receives a letter which states: "I am sorry the HSC is unable to help you". Blatant maladministration is often ignored by the HSCO. One must remember that few have the staying power to take a complaint to the HSCO, yet in 1997/98 the ¹⁸HSCO received 2,700 complaints and investigated only 13%. This is an extraordinarily low figure. What happened to the other 87%?
 The HSCO is accountable to Parliament through the Select Committee for Parliamentary Administration, not as one might expect to the Health Service Select Committee. This Committee receives around 30/50 complaints per year against the Ombudsman. It would appear they fall on deaf ears, as investigation of such cases is considered not to be " in the best interest of the public" meaning the HSCO is without effective accountability.¹⁹
 Annually, the HSCO presents up to a dozen cases to the Select Committee on PA. The Trust/Health Authority receives a public dressing down but ultimately, no individual is held accountable, no patient receives redress ( except for an apology) and no checks appear to be undertaken on any recommendations made.Footnotes:
¹³ NHS Complaints Procedure D.o.H. Guidelines: p37 para.7.38 (p.19);
¹⁴ Append 12 p.34
¹⁵NHS Complaints Procedure D.o.H. Guidelines: p43 para. 9.5 (p.20);
¹⁶ NHS Complaints Procedure D.o.H. Guidelines: p43 para 9.3 (p.20);
¹⁷ Append 1 p.21 Health Service Commissioners Act 1993 & Append 12 p.34;
¹⁸ Append 2 p.22;
¹⁹ Appendices 3 & 4; p 23 & p.24.

 

5..Conclusion

Return to Contents

 

1. Patients may be forgiven for becoming totally confused about the NHS Complaints system. Indeed this seems to be the conclusion reached by Secretary of State for Health, Mr. Frank Dobson, who recently stated that:²⁰ "The present system of protecting NHS patients is a bit of a shambles".Daily Mail, 16/7/99.On the one hand the D.o.H. Guidelines state that: ²¹" The purpose of the complaints procedure is not to apportion blame amongst the staff…" This must surely mean that since no one is to be held responsible, there can be no accountability and therefore no quality control? What possible purpose does such a Complaints system serve?On the other hand, ²²it also states that the Trusts/Health Authorities do hold the power to invoke sanctions against incompetent /malpractising doctors although all the evidence suggests that this never happens in the case of the individual complainant. ²³One Regional Authority claimed that no doctor had ever been referred for disciplinary action as a result of a Review. In practice it is not possible to take a serious complaint through the NHS Complaints system because the procedures are never properly implemented. The burden of exposing under performing health professionals should not fall on ill patients and/or their families: this is the responsibility of management.

 
2. In addition to all this confusion, another reason for the dysfunction of the NHS Complaints System is the culture of cover-up which is endemic throughout the NHS. Whistleblowers, and patients are some of the best whistleblowers, have been, and are being, suppressed. Stephen Dorrell was challenged on this matter in October 1996 by Mr. Chris Smith, the then Shadow Secretary of State for Health. ²⁴Mr. Peter Winston, President of Hospital Consultants & Specialists admitted that pre-Bristol Baby Tragedy "…whistle- blowers were condemned and suppressed by managers, doctors and by Government alike. Now they are being heard early, and action is being taken." ²⁵Dr G. Wynyard issued a government Directive in August 1998 instructing that, post -Bristol, all health professionals should "do your best to find out the facts" and "..the safety of patients must come first at all times." Is this Directive being implemented?

 
3. At the recent BMA Conference it was announced that an estimated ²⁶ 800 medical mistakes occur every day in British hospitals. This is well over a quarter of a million yearly and does not take into account mistakes in GP practice. Obviously, an unknown proportion of these mistakes will have resulted in serious iatrogenic damage and yet it is quite clear from the above critique of the NHS Complaints Procedure that it provides no protection for this group of damaged patients. The resulting systematic undermining of damaged patients' serious complaints results in unnecessary pain and suffering; health deterioration; destruction off peace of mind and family life; lives being put at risk and some patients paying the ultimate price. Drastic changes are absolutely vital. Genuine accountability and quality control with sanctions for all health professionals including managers, are essential under a new Independent Statutory Authority. However, the personal qualities, credentials and integrity of those appointed to this Authority are important considerations if this new body is to be successful and have the full confidence of the public. At the present time, the NHS Complaints System is a confidence trick played on the trusting patient at the tax-payer's expense.

Footnotes:
²⁰ Append 5; p.25;
²¹ NHS Complaints Procedure D.o.H. Guidelines: p13 para. 4.28 (p.2);
²² NHS Complaints Procedure D.o.H. Guidelines: p14 para. 4.32 (p.3) & Append 6: p.26 & Appendices 9a & 9b: pages 31 & 
²³ Append 9b p.31;
²⁴ Append 7 p.27;
²⁵ Append 8a & 8b pages 28 & 29;
²⁶ Append 13 p.35;

GM Bean & M. MacRae: Co-Directors of S.I.N. © July/August 1999
 
  

Gillian Bean Tel/Fax: 0115 9431320 e-mail: sinfo@boltblue.com

Margaret MacRae Tel/Fax: 0192 4407195 e-mail: mag@sinfo.freeserve.co.uk

copies:
Department of Health
The Prime Minister
Prof. Ian Kennedy, Chairman, Bristol Inquiry.
David Hinchliffe, MP, Chairman, Health Service Select Committee, House of Commons, London.
Patient Support Groups
The Health Service Journal
Academics
Media
Prof. John Posnet, University of York, Health Economics Consortium re:
NHS Complaints Procedure National Evaluation

Extracts from the Department of Health Guidance on Implementation of the NHS Complaints Procedure. Pages 1 - 20

Appendix One: Health Service Commissioners Act 1993. Page 21

Appendix Two: HSC Output & Performance Targets 1993 - 1994 to 1997 -1998. Page 22 

Appendix Three: Letter dated 24^th July, 1996 from Chairman of the Select Committee on Parliamentary Administration. Page 23.

Appendix Four: Letter dated 5^th August, 1998 from Clerk of the Select Committee on Parliamentary 

Administration. Page 24

Appendix Five: Extract from Daily Mail dated July 16^th,1999. Page 25

Appendix Six: Extract from letter dated 27^th November,1996 from Assistant Private Secretary at D.o.H. Page 26

Appendix Seven: Extract from Radio 4 "Today" programme dated 22^nd October, 1998. Page 27

Appendix Eight (a & b): Directive from D.o.H. re: "Handling Reports of Service Problems Post Bristol" Pages 28 & 29.

Appendix Nine (a& b): letter dated 26^th February, 1996 from Trent NHSE. Pages 30 & 31

Appendix Ten: Letter dated 23^rd. April, 1996, from Trent NHSE. Page 32

Appendix Eleven: Extract Health Service Journal July 1998. Page 33 

Appendix Twelve: Leaflet from HSC stating examples of maladministration. Page 34

Appendix Thirteen: Extract from BMA Conference 7^th July, 1999. Page 35