Barry Speker OBE DL LL.B

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1 Skills Workshop: Dealing Effectively with Patient Complaints Barry Speker OBE DL LL.B Trust Solicitor-Newcastle upon Tyne Hospitals NHS Foundation Trust Consultant Sintons LLP

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3 , ,900 Source: Health & Social Care Information Service Validity of Complaints to Health Service Ombudsman Fully upheld 60% Partly upheld 19% Not upheld 21% Conclusion: High level of dissatisfaction with responses received from the NHS

4 Equivocal language Sitting on the fence Getting key facts wrong Using technical language without explanations False apologies e.g. I m sorry you feel the care wasn t good enough

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6 Claims culture Rising awareness of ability to complain/claim Press interest Political issues as to the NHS Ambulance chasing lawyers Press, TV, radio, internet advertising Strained resources Publicity of bad cases not good cases Francis report and other public inquiries

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8 The Local Authority, Social Services and National Health Service Complaints (England) Regulations (i) Each responsible body must make arrangements for dealing with complaints (ii) The arrangements must ensure that:- [a] Complaints are dealt with effectively [b] Complaints are properly investigated [c] Complainants are treated with respect and courtesy [d] Complainants receive, so far as is reasonably practicable:- [i] Assistance to enable them to understand the procedure in relation to complaints [ii] Advice as to where they may obtain such assistance [e] Complainants received a timely and appropriate response [f] Complainants are told the outcome of the investigation of their complaint [g] Action is taken if necessary in the light of the outcome of the complaint It is essential that all Trusts have a complaints policy which is in line with the Regulations

9 1. Delayed referral 2. Delayed treatment 3. The wrong treatment 4. Under or over administration of medication 5. The problem with the silent diagnosis 6. Surgical errors 7. Failure to follow up 8. Misinterpretation of test results 9. Lack of informed consent 10. Failure to notify of side effects 11. Lack of appropriate medication to cover side effects 12. Failure to give all available options of treatment 13. Post code prescribing 14. Lack of funding Health care economics/nihce 15. Availability of medication elsewhere e.g. USA, Europe

10 16. Prognostic prediction and lack of knowledge of metastatic determinations 17. Lack of availability of screening 18. Ageism 19. Over-diagnosis resulting in unnecessary treatment 20. Rudeness/discourtesy/lack of privacy/perceived lack of caring 21. Additional issues with regard to metastatic cancer High profile of breast cancer Lack of understanding of new technologies HER2 positive breast cancer Departure from standard and recognised therapies Trastuzumab (Herceptin) Timing of testing for HER2 level Communication of unrealistic expectations as to outcomes

11 22. Delay and diagnosis of metastases 23. Unreliability of breast screening 24. Risks of screening or not screening 25. False positive findings of mammography 26. Pathology errors in breast cancer tests 27. Failure to acknowledge emotional stress in newly diagnosed patients 28. Awareness of impact of treatment for example HER2 positive cancer can become HER2 negative

12 Compliance with national and local guidelines staying up to date as to treatment options Checking diagnoses Spending time to ensure patients (and families) have full understanding. Careful checking that patient has taken in what is intended to be communicated Checking this regularly and involving GP Full and accurate record-keeping Regular communication with GP Capacity assessment under MHA Use of interpreters Use of leaflets

13 Avoiding stereotypes and taking into account patient s special circumstances Learning difficulties Language difficulties Dementia Mental health problems Personality disorders Ethnical disparities, cultural differences Have regard for comorbidities MDT approach Peer approval and endorsement Face to face communication Duty of Candour (See later)

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15 Be aware of and comply with procedure Ensure investigation is thorough Openness, accessibility and promptness Check that responses to complaints are factual, accurate and sensitive Check that the response (often prepared not by a medic) is comprehensible and properly represents your views Where there have been shortcomings, clearly understood apologies should be forthcoming Encourage patients to use PALS and ICAS Avoid making promises which cannot be kept Where jargon is used add definitions and explanations

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17 Complaint responses checked and signed by the Chief Executive should ensure that:- All issues raised by the complainant have been addressed Similar terminology to that used by the complainant is used Explanations of medical and nursing terminology are given Give explanations and details of remedial action A sympathetic and apologetic tone is used and apologies are given where appropriate Ensuring any identified action for follow up is in place for example new appointment, change of consultant, further/alternative treatment Identification and consideration of redress where called for Opportunity of taking the matter further is identified for example Health Service Ombudsman Parliamentary and Health Service Ombudsman s principles of good complaint handling:- Getting it right Not being customer serviced Being open and accountable Acting fairly and proportionately Putting things right Seeking continuous improvement

18 Complaints become claims Clinical negligence claims involve Duty of care Breach of duty and relevant standard of care Damage resulting from breach/causation/remoteness Public enquiries Corporate manslaughter Significant adverse publicity Disciplinary action from Trust Professional discipline GMC Reputational damage Funding penalties.- CQUIN Closure of Units

19 From an ethical duty to a legal duty. NHS bodies have a duty of candour to patients. The new NHS standard contract requires all NHS healthcare providers and private providers serving NHS patients to disclose errors in treatment which result in moderate or severe harm or death. NHS standard contract Treatment contract guidance SC35 Any reportable or suspected patient safety incident falling within categories of moderate or severe harm or death must be investigated and reported to the patient, and any other relevant person, within 10 days Under the new NHS Contract, if a provider breaches the contractual duty of candour, the commissioning body can recover either the cost of the episode of care, or up to 10, if the cost is unknown, from the provider.

20 Where such an incident occurs there is a duty to speak to the patient as soon as possible communicating the facts and giving an apology and offering this to be done in writing. The meeting should be audited. The National Patient Safety Authority (NPSA) defines the three levels of harm in seven steps to patient safety as follows:- Moderate any patient safety incident that resulted in a moderate increase in treatment and significant but not permanent harm. Severe a patient safety incident which appears to have resulted in permanent harm Death an incident that directly resulted in the patient s death Service providers are expected to use these definitions to create their own guidance

21 Contract Annex 4 Implementing the Contractual Requirements relating to Duty of Candour 1. The patient or their family must be informed of the incident within at most 10 working days. 2. The information notification must be verbal (face to face where possible) and must take into account language barriers, communication difficulties, relevant disability. An offer of written notification must be made. 3. If it is unclear whether a patient s safety incident has occurred or the degree of harm involved, this is not a reason to avoid disclosure. 4. An apology must be offered. Note Being Open 5. A step by step explanation in plain English must be offered as soon as possible. 6. Full written documentation of any meetings must be maintained. 7. Any investigation reports must be shared within 10 working days of being signed off as complete and the incident closed. 8. Providers should inform the patient s commissioner when they are communicating with a patient/family/carers. These will be part of the six monthly contract review process. 9. Commissioners should consider referral to the CQC for breach of registration requirements in the case of serious incidents of deaths.

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