How do you make an effective complaint?
One of the first things you’ll want to do if you think you’ve been the victim of clinical negligence is make a complaint. This is only natural and is often as far as people wish to take the process. If you’ve suffered from what you feel was negligent treatment, but were fortunate enough to escape unscathed, then registering a complaint, in the hope that others will be spared the same treatment, and that you receive an apology for what happened to you, may be all you want to do before getting on with the rest of your life.
If you’ve been left affected by what you feel is negligent treatment, however, and will continue to suffer for an indeterminate period, then a claim for clinical negligence may be appropriate.
Initiating a complaint against the NHS, or starting a claim for clinical negligence, can turn out to be a long and complex process, which means it’s vital to seek the advice of an experienced and accredited clinical negligence solicitor at the earliest opportunity. They’ll be able to ascertain whether you actually have grounds to make a claim and what the chances of success are likely to be. The fact that you’ve already launched a complaint via a platform such as the official NHS Complaints procedure will have no legal bearing upon your case going forward and may even prove to be extremely useful in seeking more information – such as asking to see your medical records under the auspices of the Data Protection Act 1998 – and building up a comprehensive picture of what actually happened to you. This picture can then be used by your solicitor as part of the mechanism of initially putting your case together.
If you’re only interested in having your complaint noted and dealt with, as opposed to seeking compensation, then an official complaint, rather than a claim for negligence may be the path to go down. Clinical negligence compensation is about having your suffering and the negligence which caused it recognised, and receiving a payment aimed at stopping you having to suffer financially as well as physically and psychologically. Even if the court finds in your favour, they won’t be able to discipline the medical practitioner involved, compel the hospital or individual professional to alter their practices or make them apologise to you.
People who feel they’ve been let down by the treatment offered by the NHS are sometimes reluctant to either complain or take action. This is fuelled by a combination of the daunting nature of taking on such a monolithic organisation – one which employs more than 1.6 million people – and, in many cases, a degree of affection for the institution and a sense that the people working in it are only trying their best. Whilst this is usually the case it is a misguided approach in two senses; firstly, in that negligence claims, in order to succeed, deal with those cases in which healthcare professionals have failed to uphold the standards expected of them, and secondly in that the organisation itself recognises that standards can sometimes slip and has mechanisms in place for recording and dealing with such cases. The right to make a complaint is set out in the very constitution of the NHS and includes pledges that all complaints will be fully investigated with the results of these investigations being relayed, in full, to the patient involved. It also includes the right to seek a ruling by the Parliamentary and Health Service Ombudsman and, crucially, the right to receive compensation if negligence has led to you suffering harm.
All of this is in stark contrast to the perception often created of an NHS being swamped by frivolous compensation claims. Given that the number of patients treated every year by the NHS is the equivalent of 243 million and that the number of claims made against the organisation represents just 0.005% of this total, it’s clear that things rarely go badly wrong, and that the NHS has the policies and processes in place to track these cases, learn from them and only compensate patients when both negligence and harm are genuine. The fact that this can involve long and complicated court cases is testament to the professional reputations at stake in such cases and the complexity of the evidence which needs to be weighed in order to establish the cause of any injury, its extent and the impact on a claimant’s life going forward.
Claims against the NHS will be dealt with by the NHS Litigation Authority (NHSLA), an independent body which, according to the most recent stats, paid out £1.1 billion a year as a result of the harm suffered by patients.
Complaints or claims against a private practitioner, on the other hand, will be made against either the practitioner individually or the body for which they work. In both cases, your solicitor will bring together all the relevant records of the treatment you received and cross reference this with your past and current state of health. If they feel it can be demonstrated that you’ve been the victim of negligence then they’ll begin putting a case together, although the hope (and frequent reality) will be that the case can be settled long before it reaches court.
Private practices are regulated by the Care Quality Commission and the General Medical Council, independent bodies which, between them, set out a framework of good practice against which any suspected negligence can be measured by an expert such as a clinical negligence solicitor.
According to the Patients Association, a campaigning organisation aiming to improve patient safety across the UK, the most common causes of complaint which people bring to them are as follows:
- GP diagnosis – An initial diagnosis which either misses the presence of a condition, or diagnoses the wrong condition.
- Struck off a GP list – A patient feeling they have been removed from a GP practice as a reaction to them making a perfectly legitimate complaint.
- Rude clinicians – A medical professional treating a patient in a manner which is brusque, dismissive or sometimes prejudiced.
- Waiting times – A patient feeling that they have been made to wait in pain, or for badly needed medical attention, for far too long.
- Adult social care – Often involving individuals or families who feel that elderly relatives are not receiving the proper level of care from the nursing or care home in which they reside.
- Dentist charges – Patients who claim to have been informed of the charges for dental work only after the work has been carried out.
- Delayed eferral to a specialist – A patient who feels that a GP has been reluctant to refer them to a specialist, causing a delay in diagnosis or treatment which has worsened their condition.
- Private healthcare – Patients who feel that the some of the fees they were eventually charged by a private practitioner were hidden at the time the treatment was delivered.
- Medical records – Patients who obtain a copy of their medical records and find they contain comments or diagnoses which they feel to be erroneous.
- Care in hospital – Patients who feel that the standard of nursing care which they, or a loved one, received whilst staying in hospital fell below what they would expect.
Not all of the above necessarily represent cases of neglect, but they do show the range of things that can go wrong when patients interact with professionals, and the subtle differentiations which have to be made between systemic issues, differences of understanding and genuinely unacceptable behaviour.
The Patients Association also reports to the All Party Parliamentary Group for Patient Safety and Katherine Murphy, Chief Executive, issued the following statement in December 2015:
“The Patients Association was delighted to welcome an expert panel to give evidence at the second meeting of the APPG for Patient Safety. The APPG for Patient Safety was created to highlight that much more can be done to improve patient safety across the NHS, particularly towards complaints handling and infection control.
“It was pleasing to hear that both the Government and NHS England recognise that patient safety must be at the heart of the culture of the NHS. Better complaints handling is key to bringing about this culture change. It is fundamental to the work of the Patients Association, and we are hoping through this APPG to help create an NHS with greater openness and transparency.”
Duty of candour
The recognition of the importance of patient complaints in formulating future health policy, and the need for transparency within the health system was enshrined in law in the form of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 20. This regulation states that providers of health care have a duty to be open and transparent with services users and the people representing service users, as well as setting out steps which must be taken when things go wrong such as informing the patient, providing support, providing accurate and truthful information and issuing an apology. The presence of a duty of candour and the official admission, following scandals such as that in Mid Staffs, that improvements in health care are often driven by the complaints of patients underline the importance of making such complaints, and, where applicable, of claiming compensation. Such mechanisms are not only vitally important for the individuals directly involved, but also for those individuals in the future who may enjoy the benefit of a service which has been improved through learning from its’ mistakes.