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Dealing with a complaint

A complaint may come to you in a number of ways. You may be approached directly by the person complaining or their family, through your PALS officer, ICAS or another member of staff.

Most complaints start as concerns. It is important to try and resolve them on the spot. By careful handling this may prove possible. If not, the complaint could become more "formal", e.g. by the client writing to the chief executive of your organisation.

This section will help you define what a complaint is, how to handle it, and some of the issues and questions that you may be faced with.

We have used the term client throughout the toolkit when we refer to anyone from patient, carer to a member of the public, who raises concerns about their NHS services

Defining a complaint

The Citizen's Charter Complaints Task Force has defined a complaint as:

"an expression of dissatisfaction requiring a response".

In the majority of cases, complaints are made orally. All complaints, whether oral or written, should receive a positive and full response, with the aim of satisfying the complainant that his/her concerns have been heeded, and offering an apology and explanation as appropriate, referring to any remedial action that is to follow. The trust chief executive will be responsible for ensuring that there is appropriate local policy and procedural guidance in place that is available to all staff.

For a more detailed information about informal complaints, and how clients define their problem, please read the section on Working with PALS and ICAS.

Dealing with difficult complainants

Prolific complainants can be difficult to deal with
 People who bring prolific complaints to the NHS can be difficult to deal with. Whether they are right to persist with their complaint or not, they need your support to resolve the issue.

You will be aware of your trust's complaints procedure that tackles how to handle prolific complainants. But ensuring that such complaints are resolved relies on how you manage the individual. Labelling people as persistent, habitual or vexatious complainants should be the weapon of last resort.

If you label a complaint as vexatious from the start then it will never be anything else. This may get in the way of your ability to understand why the complainant is so persistent, and may only prolong the time it takes to reach a conclusion.

All complaints are real - whatever you think
It is important to remember that if a person contacts you with what they believe is a complaint, then it is to them, whatever you think. If the complainant raises the same or similar issues repeatedly despite receiving a full response, there may be underlying reasons for this persistence.

How do you identify a prolific complainant?
A prolific complainant is someone who raises the same issue despite having been given a full response. They are likely to display certain types of behaviour such as:

  • complains about every part of the health system regardless of the issue
  • seeks attention by contacting several agencies and individuals
  • always repeats full complaint
  • automatically responds to any letter from the trust
  • insists that they have not received an adequate response
  • focuses on a trivial matter
  • is abusive or aggressive.

What do you do if the complainant is difficult?
If you are faced with a complainant who you believe is unreasonably persistent you need to identify appropriate action with the relevant clinician. Remember that this action should be tailored to the complainant's needs and include regular feedback and reviews.

Take a look at some of the protocols that other NHS trusts have developed. The Health Service Ombudsman Service has a good complaints policy framework that it is worth considering:

Policy outline - vexatious or unreasonably persistent complainants

  • regardless of the manner in which the complaint is made and pursued, its substance should be considered carefully and on its objective merits
  • complaints about matters unrelated to previous complaints should be similarly approached objectively and without any assumption that they are bound to be frivolous, vexatious, or unjustified 
  • particularly if a complainant is abusive or threatening, it is reasonable to require him or her to communicate only in a particular way - say, in writing and not by telephone - or solely with one or more designated members of staff; but it is not reasonable to refuse to accept or respond to communications about a complaint until it is clear that all practical possibilities of resolution have been exhausted.
  • it is good practice to make clear to a complainant regarded as unreasonably persistent or vexatious the ways in which his or her behaviour is unacceptable, and the likely consequences of refusal to amend it, before taking drastic action
  • decisions to treat a complainant as unreasonably persistent or vexatious should be taken at an appropriately senior level; and senior management - probably the board or a committee of the board - should monitor such decisions.

Other information on persistent complaints
Here are just a few examples of the many trusts that have comprehensive procedures available on the web for handling people who have been labelled persistent, habitual or vexatious complainants:

  • Hillingdon Primary Care Trust
  • East London and The City Mental Health NHS Trust
  • Surrey Oaklands NHS Trust
  • Dorset and Somerset Strategic Health Authority
  • West London Mental Health NHS Trust

There are many more that you can find if you search NHS trust sites on the Internet.

Using complaints to improve your service
The important thing is to see a complaint as an opportunity to review the service that your trust provides, or the way that the trust handles complaints.

For example, complaints can be a useful source of information about how other people see your trust. Whether the complaint is justified or not the complainant clearly feels aggrieved. It is important to do as much as you can to restore the person's, and public's, confidence in your NHS trust.

Eligibility

Time limits on complaints
A complaint needs to have gone through the local resolution stage before it can become a legal case.

Time limit on initiating complaints
A patient can make a complaint within six months of the incident. However, if it has taken the patient some time to discover the problem then the time limit is within six months from the point of discovery, as long as this is no more than 12 months since the incident.

As a complaints manager you have discretion to extend this time limit if the circumstances show that the complaint could not have been made earlier, and if it is still possible to investigate the complaint.

An example of this could be that a patient could had suffered distress or trauma that prevented the complaint being made.

If a complaint is made outside the time limit, again it is up to you to decide what to do. However, the person complaining may object to your decision not to exercise your right to discretion to extend the limit.

If all attempts to settle the complaint using local resolution fail, and it does not move on to independent review, the person complaining could take their case to the Health Service Ombudsman.

Patients should have a full and prompt reply to any complaint made against a trust or PCT, normally within 20 working days. Family health service providers such as GPs, dentists, pharmacists or opticians should reply within 10 working days.

Consent to treatment
For detailed information about consent to treatment, and issues around children and consent, please look at the section on Consent in the Law and Complaints section.

Local resolution

The purpose of local resolution is to provide an opportunity for the complainant and the organisation (or individual) subject to the complaint, to attempt a rapid and fair resolution of the problem. The process should be open, fair, flexible and conciliatory, and should facilitate communication on all sides.

Front line staff, as well as complaints managers, have an important role in dealing with local resolution issues - they are often the first point of contact for the complainant.

In cases where the issue looks serious or complex the complaints manager can intervene - either to investigate the problem or to co-ordinate, in conjunction with appropriate staff, the resolution of the issue.

The chief executive has a statutory obligation to respond to all written complaints, and all oral complaints that are subsequently put into writing and signed by the complainant.

Complainants can seek support from ICAS or another agency offering advice, advocacy and/or information, regarding their case.

For further information about PALS and ICAS
Please see the Working with PALS and ICAS section, and:

Conciliation

The NHS complaints regulations state that PCTs must make arrangements to provide conciliation services in primary care complaints. In practice, many other NHS services, including acute and mental health services, have found that conciliation is a helpful tool in resolving complaints.

This guide relates to the use of conciliation as part of local resolution in the NHS complaints procedure only.

Definitions
NHS Conciliation is a method of facilitating a dialogue to resolve an issue. It is an intervention whereby a third party helps the parties to reach a common understanding. It gives space to resolve issues, preserve on-going relationships and time to defuse or calm heightened situations.

Conciliation is often used interchangeably with mediation or confused with arbitration. In the NHS, mediation is often associated with claims settlements. As the NHS complaints and claims systems are currently separate, it is not useful to use the term mediation in relation to the complaints procedure. However, many conciliators will use mediation skills. Arbitration is very different to both conciliation and mediation in that it is often not voluntary and the arbitrator may make a judgement and impose a settlement.

Principles
There are certain principles which must apply when conciliation is adopted.

  • conciliation encourages and maintains the voluntary participation of all parties
  • it is confidential
  • it is without prejudice
  • the conciliator is impartial, independent and non-judgemental
  • it encourages the participation and self-determination of all the parties so that they retain responsibility for both the content of the conflict and the outcome of the conciliation
  • conciliation encourages collaboration, working with people (rather than against them)
  • it offers a structured and challenging approach to conflict resolution
  • it seeks to help parties identify their own and others feelings and interests rather than defend positions.

Keys to effective conciliation

  • offer it as early as possible before positions are entrenched
  • promote an understanding of the benefits of conciliation among key staff who may find themselves the subject of a complaint (check the trust's figures on complaints and the most common subject areas - this will often reflect the areas of potential tension as opposed to poor practice eg A&E)
  • develop a leaflet/core script which explains conciliation to complainants and complained against
  • be clear that this is a confidential process
  • complaints managers should avoid giving conciliators subjective briefing eg "this doctor is feisty, has been difficult in the past".

Confidentiality
Although all information raised within a conciliation meeting should remain confidential, there are certain circumstances where a conciliator may feel they have to breach confidentiality. This might include where they became aware of issues relating to child safety or patient safety. Their first recourse should be to the complaints manager who has access to further advice on child protection or clinical issues.

Please also see the section on Confidentiality.

How to find a conciliator
Conciliation is a way of dealing with complaints that helps to avoid adversarial situations. By bringing the two sides together with a neutral conciliator, it aims to come up with a satisfactory conclusion for both of them.

A pool of good conciliators will mean that you should be able to locate a conciliator in good time.

Primary care trusts (PCTs) are required to provide conciliation services. So find out from your PCT, or ask your NHS trust, what conciliation services they can provide.

Payment
The issue of payment brings us straight into the debate around volunteering in the NHS and expectations of professional standards. There is no formal guidance on how conciliators should be paid. There are several models:

  • some conciliators work freely, claiming expenses only
  • some are paid per hour, per case or a flat fee plus expenses
  • some claim loss of earnings
  • some are employed

Care must be taken to ensure there are not perverse incentives within the payment system and that issues around tax and PAYE are clear.

Performance management/monitoring
A system of performance monitoring of conciliation must be in place in order to demonstrate quality where conciliation was used, whether it proved helpful and feedback from complainants and complained against. This may be legitimately requested by any organisation involved in the performance management or scrutiny of local services. This could include: the Trust board; the Strategic Health Authority; CHI; the Patient's Forum; or the local authority Overview and Scrutiny Committee on Health. This type of monitoring would be the responsibility of the complaints manager.

There also needs to be a system of performance monitoring for the conciliators themselves to ensure they learn from their experience. This might include case review or audit with the complaints manager as well as peer review or peer support with other conciliators within the bounds of confidentiality. This can be promoted through regular networking of conciliators, supervision sessions, telephone trees, sample surveys or feedback forms for users of the service - both complainants and complained against. Conciliators will need opportunities to de-brief.

However, complaints managers should be aware that conciliators will only feed back on the process (ie length of time conciliation took, arrangements etc) rather than the substance of the discussion.

Health and safety
NHS organisations will have health and safety policies for staff undertaking home visits, for example health visitors. Arrangements for conciliators should comply with this policy. They should think carefully about safety if the practice is to meet the parties separately before bringing them together. Conciliators should not give their home telephone numbers to complainants or complained against. The NHS Trust may consider providing a mobile phone for this purpose or arrange meetings for the conciliator.

Other issues
Does the conciliator's report form part of the complaints file? No, if anything we would encourage conciliators not to make a formal report but to note agreed action points or outcomes (eg apology), which with the agreement of both parties, could be shared. There should be no judgements or recommendations. Any patient identifiable material should be kept in a safe place. Any medical records should go back to the complaints manager for filing or shredding after use.

Access issues

Hard to reach groups
There are many groups in our communities that find it hard to access the services that they need. Therefore it is important that the NHS has in place mechanism to ensure that all groups are given the opportunities to access proper health care services.

Ethnic minority issues
Race equality councils (RECs) are funded by the Commission for Racial Equality (CRE) to work in local communities to promote racial equality and tackle racial discrimination.

There are over 100 RECs in England, Scotland and Wales that can provide advice and information about ethnic diversity, good practice and legal issues.

Communicating with your community: translation and interpreter services and other information resources
Communities in the UK are becoming even more diverse, and an important aspect of your role is to be able to communicate with local people. This means translating materials into the languages of your local community. It is also key that you provide information for people with learning and other mental health difficulties, as well as people with disabilities.

There is no one central resource to find the translation or interpreter services that you might need to provide information and materials. There are also specialists that design materials for people with learning disabilities

However, there are a number of organisations that you can approach. For example, talk to your:

  • local authority
  • race equality council
  • voluntary and charity sector organisations
  • Royal National Institute for the Blind
  • Age Concern
  • Disability Resource Team

Bereavement
The Health Service Commissioner has investigated a number of complaints about the inadequate management of events around the death of a patient in hospital.

It is clear that there needs to be greater emphasis on dealing sensitively with the family and friends of the patients who die in hospital, and dying patients. There are health service guidelines on bereavement that provide advice on this (see links below).

Some areas of concern are:

  • keeping accurate records of how to contact the patients and friends of the patient
  • keeping relatives and close friends aware of the treatment and prognosis for the patient
  • religious and cultural practices of the patient and their family
  • wishes of the dying patient, including making a will and death-bed marriages
  • talking to relatives about organ transplant
  • advising and counselling bereaved parents after a stillbirth
  • arranging funerals for patients who have no relatives or friends; for stillbirths
  • handing over the belongings of the dead patient
  • telling family as soon as possible that a post-mortem is going to be conducted.

Patient advocacy
The Independent Complaints Advocacy Service (ICAS) is a free, impartial and independent service for people who wish to pursue a complaint about the NHS only. This includes GPs, hospitals, health centres, ambulance services, dentists, opticians and pharmacists.

For more information, see the Links section.

Dealing with a media inquiry

It is likely that some of the complaints that you handle could attract media attention. This may be because the complainant takes the story to the local press. If this happens you may get calls from journalists who want to know more information and want an official comment from your trust.

Or you may have a complaint that you think has the potential to become a media story, and need to know what to do. In either case your role is to liaise with your press office and chief executive, and not to comment.

The following explains what you should do when faced with media interest.

1. If the media ring you for information about a complaint that you are handling, this is what you should do:

  • politely explain that you are unable to give any further information
  • say that you will pass the inquiry on to the trust press office and that a press officer will ring back immediately.

2. If you think that a complaint that you are handling could attract media attention, you should

  • immediately alert both your press office and your chief executive.
  • prepare a briefing about the case for both the press office and chief executive.

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