Policy and Procedure Relating to The Handling of Formal Complaints (including unreasonably persistent complainants)

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1 Policy and Procedure Relating to The Handling of Formal Complaints (including unreasonably persistent complainants) DOCUMENT CONTROL Version: 14.1 Ratified by: Risk Management Sub Group Date ratified: 15 January 2013 (amended 17 July 2013 Name of Originator / Author: Complaints Manager Name of responsible Risk Management Sub Group committee/individual: Date Issued: 18 January 2013 Review Date: January 2016

2 Contents Section Page 1. INTRODUCTION 4 2. PURPOSE OF THE POLICY 6 3. SCOPE 6 4. RESPONSIBILITIES, ACCOUNTABILITIES AND DUTIES The Trust Nominated Board member Complaints Manager PALS Coordinator Assistant Directors/Medical Director Investigating Officers Head of Patient Safety and Experience Risk Management Sub Group Organisational Learning Forum Clinical Governance Group PROCEDURE/IMPLEMENTATION Policy and Procedure for Dealing with Formal Complaints. Stage I - Local 11 Resolution How joint complaints are handled between organisations Policy and Procedure for Dealing with Formal Complaints. Stage II - Referral 15 to the Parliamentary Health Service Ombudsman 5.3 Procedure for Complaints concerning Local Authority service which have 15 been integrated with RDASH services 5.4 Importance of Good Communication and Engaging All Stakeholders Links with the Patient Advice and Liaison Service (PALS) Unreasonably Persistent Complainants Policy and Procedure for Handling Large Scale Complaints Policy and Procedure for Complaints that may Involve Criminal Proceedings Calling the Police Concurrent Investigations Investigation Following Police Enquiry Policy and Procedure Relating to the Allegations of Patient Ill Treatment Supporting Service Users and Complainants How the Trust makes improvements as a result of a concern or a complaint TRAINING IMPLICATIONS MONITORING ARRANGEMENTS 24 Page 2 of 45

3 EQUALITY IMPACT ASSESSMENT SCREENING Privacy, dignity and respect Mental Capacity Act LINKS TO ANY ASSOCIATED DOCUMENTS REFERENCES APPENDICES Appendix A Flow Chart of Complaints 28 Appendix Bi Contact Preferences Form 31 Appendix Bii Diversity Monitoring Form 32 Appendix C Appendix C(ii) How joint complaints are handled between organisations: Rotherham and Doncaster Protocol for Handling NHS/Social Services Inter-Agency Complaints How joint complaints are handled between organisations: Protocol for Handling NHS/Social Services Inter-Agency Complaints (North and North East Lincs) Appendix D NPSA Risk Matrix 42 Appendix E Guidelines for Writing a Statement/Report of Events 44 Page 3 of 45

4 1. INTRODUCTION The Local Authority Social Services and NHS Complaints (England) Regulations 2009 ( The Regulations ) was received for implementation from 1 st April The arrangements are intended to make the whole experience of making a complaint simpler, more user-friendly and more responsive to people s individuals needs (rather than a one size fits all). They also emphasise that health and social care services should routinely learn from complaints, feeding into service improvement, and where possible informing the commissioning of services. A simple two-stage complaints system, focusing on Local Resolution, and subsequently, if unresolved, an investigation by the Parliamentary and Health Service Ombudsman (PHSO) or Local Government Ombudsman (LGO), has replaced the previous system. Under the new system, the complainant must also be made aware of how they can contact the Care Quality Commission (CQC). Complaints handling aims to: Resolve complaints more effectively by responding more personally and positively to individuals who are unhappy, and Ensure that opportunities for services to learn and improve are not lost By reforming the health and social care complaints system, it is envisaged that the following will be achieved: Remove the rigid process-based arrangements that previously applied Unify, simplify and make the arrangements more flexible Make the arrangements more accessible to people Work as a one-stop shop at local level, with unified handling of complaints across health and social care boundaries Encourage and empower people to come forward with complaints and concerns, supported by existing PALS and customer service arrangements Treat each case according to its individual nature and the complainant s desired outcome Focus on satisfactory outcomes through swift, local resolution Seek to ensure lessons are learnt from individual complaints and that those lessons lead to service improvement Place a responsibility on commissioning bodies, Clinical Commissioning Groups (CCGs) and Local Authorities (LAs) to ensure that providers from which they contract services have arrangements in place that respond effectively to individuals making complaints, and demonstrate that improvements in response to complaints are implemented The approach allows local health and social care organisations to determine the mechanisms best suited for them to deliver effective complaints arrangements within their own organisations, taking into account local circumstances. Page 4 of 45

5 The procedures are underpinned by the six core objectives identified in the Parliamentary and Health Service Ombudsman s 2008 publication Principles of Good Complaint Handling and supported by Being Open Policy and the Guidance on Duty of Candour: 1. Getting it right 2. Being customer focussed 3. Being open and accountable 4. Acting fairly and proportionately 5. Putting things right 6. Seeking continuous improvement The emphasis continues to be placed on conciliation/mediation to respond effectively to the satisfaction of the complainant at local level, and the current intentions remain: People and their carers are aware of and can use with support where needed, and without prejudice to their care and treatment, simple and clear arrangements for handling comments, concerns and complaints Complaints about failures to ensure people s health, safety and welfare are investigated and resolved properly and effectively Learning from complaints is included along with learning from other events, in management and governance arrangements Ease of access for service users and complainants A simplified procedure with common features, for complaints about any of the services provided as part of the NHS Making it easier to extract lessons learnt from complaints to further improve services for patients Fairness for staff and complainants alike More rapid, open responses, conducive to the majority of complaints being resolved through the Local Resolution process, involving conciliation/mediation, where appropriate An approach that is honest and thorough, with the prime aim of resolving the problems and satisfying the concerns of the complainant The Essential Standards of Quality and Safety published by the Care Quality Commission in December 2009, sets out the requirements with regard to complaints under Regulation 17. It is a requirement that the procedures are available, understood and well publicised, in suitable formats, and includes how the person can contact the Care Quality Commission. Telephone and contact details will be included in the Trust s Complaints leaflet which will be made widely available throughout the Trust. Timescales The new Local Authority Social Services and NHS Complaints (Regulations) 2009 have removed statutory timescales in responding to complaints. However, % response to complaints within 25 days is included in the national patient experience quality indicators. Based on current experience, it is anticipated that only a small number of highly complex complaints will require additional time, and managers need to be aware of the need to respond in a timely and comprehensive way, as agreed with the complainant in the complaint resolution Page 5 of 45

6 plan. These highly complex complaints are anticipated to be investigated and responded to within no longer than 60 working days. Reporting The NHS Litigation Authority (NHSLA) requires NHS organisations to have robust systems in place for the reporting, management and investigation of incidents, to facilitate organisational learning and for internal and external information to be used to improve the quality of services: Complaints and claims, when examined in conjunction with reported incidents and near misses, will allow trends to be identified and improvements to be implemented. This can lead to the prevention or recurrence of incidents, claims and complaints. The sharing of lessons learned from one service to other areas of the Trust will help to ensure that any system failures discovered during investigations are adopted by the Trust as a whole and pockets of good practice are not isolated (NHSLA, 2008). The Trust s Complaints Manager will analyse and report on any trends identified to facilitate service improvements and organisational learning. See Section 7: Monitoring of the Policy. Any comments of complaints received which describe events considered to be an adverse or serious incident should trigger the need for a serious incident investigation to be undertaken. As described in the Monitor Compliance Framework Foundation Trusts should have in place adequate processes or procedures to identify and report serious complaints to Monitor. A failure to do this may be reflected in a Foundation Trust s governance risk rating. When assessing governance risk, Monitor considers, amongst other relevant information, significant trends in complaints. All serious complaints (risk rating high and significant) and significant trends in complaints should, therefore, be reported to Monitor. Additionally, where a complaint, or other matter has arisen, which may result in any resulting material which may impact upon the Trust s reputation, this should also be reported to Monitor. The Investigating Officer will assess the risk of the complaint using the NPSA Risk matrix 2. PURPOSE OF THE POLICY The purpose of this policy is to set out the procedures which the Trust has in place to support the effective implementation of the The Local Authority Social Services (LASS) and the NHS Complaints (England) Regulations 2009 and the Compliance Framework requirements: reporting serious complaints to Monitor by setting out the arrangements to: provide fair and equitable access for service users to make complaints and to provide an honest and open response to these complaints. provide service users and those acting on their behalf with support to bring a complaint or to make a comment, where such assistance is necessary have mechanisms in place to learn from complaints share this learning across the Trust where appropriate. Page 6 of 45

7 This policy also endorses the principles set out in Reform of Health & Social Care Complaints (DH, 2008), Principles of Good Complaints Handling, (Health Service Ombudsman, 2008) and Making Experiences Count Toolkit (DH, 2008) 3. SCOPE This policy covers all activities of the Trust and staff in its employ. 4. RESPONSIBILITIES, ACCOUNTABILITES AND DUTIES 4.1 The Trust It is the responsibility of the Trust to: Nominate a Board Member to take responsibility for compliance with arrangements made under the Regulations and Compliance Framework requirement: reporting serious complaints to Monitor, and that action is taken as a result. In this Trust, this role is undertaken by the Executive Director of Business Assurance Have in post a person who is readily identifiable to service users and who will be responsible for managing the complaints handling function within the Trust. In this Trust, this role is undertaken by the Complaints Manager 1 Make arrangements to provide the full, appropriate service to service users (PALS/customer care/complaints staff). See Appendix A. Flow Chart of Complaints Ensure as far as possible that anyone making a complaint, either in their own right, or on behalf of a service user, is not treated any differently as a result of making the complaint Acknowledge complaints within three working days of receipt by the Complaints Manager. Acknowledgement may be either verbally or in writing Ensure that complaints are dealt with within the timescale agreed with the complainant (see Appendix B, Contact Preferences Form) Have in place systems which allow wherever possible for complaints to be completed at Stage I Local Resolution - within the Trust Provide awareness raising and training on an ongoing basis for staff, incorporating new guidance as and when required Recognise the importance of learning from complaints. It is recognised that the Trust should share knowledge and good practice - both internally and externally, whilst maintaining confidentiality - arising from complaints, to support improvements for service users and improved risk management 1 In the context of this policy, Complaints Manager refers to both the Complaints Manager and the Patient Experience and Complaints Manager Page 7 of 45

8 Have arrangements in place for structured, continuous independent monitoring of formal complaints and action plans. The Assistant Directors/Medical Director will undertake this task Prepare an annual report on the handling of complaints, including: o number of complaints received o subject matter o outcome of complaint (upheld or not) o record of further referral (Ombudsman) o thematic analysis of complaints, actions taken and lessons learnt A copy of the report should be shared with the relevant Commissioners and an annonymised copy should be available to the local community population and local agencies, where partnership protocols exist. Continue to promote effective joint working relationships. There is a duty to cooperate/co-coordinate complaints handling with other local organisations, under the Regulations where complaints involve more than one agency/organisation. See Appendix C. Rotherham and Doncaster Protocol for Handling NHS/Social Services Inter-Agency Complaints. Achieve fairness for both complainants and staff Work in partnership with groups representing service users, to promote equality of access to the complaints process. It is recognised that advocacy is extremely important to service users 4.2 Nominated Board Member The nominated Board Member - the Executive Director of Business Assurance - is responsible for compliance with the arrangements made under the Complaints Regulations and the Monitor Compliance Framework requirement to report serious complaints to Monitor, and for taking any required action as a result. 4.3 Complaints Manager The Complaints Manager will: Manage the complaints handling function within the Trust and be readily identifiable to service users. Advise Complainants of the complaints process, including advocacy services available in their area where appropriate. Make clear and accessible information about the complaints procedure widely available for service users and carers, which will include how people can contact the Parliamentary Health Services Ombudsman and the Care Quality Commission. Telephone and contact details will be included in the Trust s Complaints leaflet which will be made widely available throughout the Trust. Page 8 of 45

9 Inform the Executive Director of Business Assurance of any serious complaints and significant trends in complaints, in order that these may be reported to Monitor accordingly. Any comments or complaints received which describe events considered to be an adverse or serious incident should trigger the need for a serious incident investigation to be undertaken. The Complaints Manager should refer these on to the Head of Patient Safety and Experience for her consideration. The Patient Experience Team will provide information, advice and support to distressed members of the public/patients/carers where large scale failures of services have occurred. Monitor complaint action plans, reporting progress to the Organisational Learning Forum on a monthly basis. Provide training for investigating officers in order that they are competent to address the issues raised, provide honest explanations that are based on fact and explain the reasons for decisions made Monitor that the procedures are followed in practice, and review the procedures as required Confirm that the complaint has been risk assessed following investigation. The risk assessment of complaints is considered good practice by the National Patient Safety Agency (NPSA) Support Assistant Directors, the Medical Director, Service Managers, Modern Matrons and Clinical Directors to investigate and resolve complaints Liaise closely with Local Authority Social Services (LASS) Complaints Departments, where a review under the Local Authority complaints procedures should be invoked, and where complaints clearly relate to the LASS functions which have been delegated to the Trust The Patient Experience Team (PET) will randomly select a number of formal complaints where the team has been advised that complaint action plans have been completed and the identified actions implemented. Evidence to support that the actions have been implemented will be required to be sent to the PET in order to provide assure to the Board. Lessons learnt from complaints or concerns raised are shared at the Organisational Learning Forum so that Business Divisions can learn and share improvements as a result of investigations. Provide information regarding a complaint that may be regarded as a Serious Incident to the Director of Business Assurance Page 9 of 45

10 As a member of the Patient Experience Team, participate in a range of proactive measures with service users, carers and staff to encourage comments and feedback, with a view to reducing the number of formal complaints and promoting ongoing improvements in service quality 4.4 PALS Coordinator (see Patient Advice and Liaison Service Policy (PALS) Policy) The PALS Coordinator will: Work closely with the Complaints Manager, and in agreement with the complainant, to resolve complaints which might be more appropriately addressed via PALS Liaise directly with the relevant service areas as necessary to resolve complaints. The Patient Experience Team will provide information, advice and support to distressed members of the public/patients/carers where large scale failures of service have occurred. 4.5 Assistant Directors/Medical Director Assistant Directors/Medical Director will: Ensuring they have systems in place in order that patients, their relatives and carers are not treated differently as a result of raising a concern or a complaint. Provide structured, continuous independent monitoring of complaints, implementation of action plans and service improvements within their areas of responsibility Enter the risk to the relevant Directorate Risk Register or Corporate Risk Register. See the Trust Risk Management Strategy for further guidance. Where a high or significant risk is identified, this should be entered to the relevant directorate/corporate risk register. Undertake training in order that they are competent to address the issues raised, provide honest explanations that are based on fact and are able to explain the reasons for decisions made. Ensure that all complaints relating to their Business Division are fully investigated Appoint an appropriate Investigating Officer Send findings, recommendations, action plans and full draft responses to the Complaints Manager well within the agreed timescales, in order that the timescale agreed with the complainant is adhered to Page 10 of 45

11 Notify any staff involved in a complaint investigation of the outcome and any agreed actions Complete and signed off action plans Discuss and disseminate learning and implement any required policy and practice changes to promote ongoing improvement and organisational learning 4.6 Investigating Officers (Service Managers and Modern Matrons/Clinical Directors) Investigating Officers will: Reassuring patients, their relatives and carers that they will not treated differently as a result of raising a concern or a complaint. Undertake training in order that they are competent to address the issues raised, provide honest explanations that are based on fact and are able to explain the reasons for decisions made Investigate complaints as requested by the Assistant Director/Medical Director Identify a root cause of the complaint Submit a report of their findings, recommendations, full draft response and an action plan to the Assistant Director/Medical Director. The action plan will include a risk assessment of the complaint, the root cause of the complaint, and whether the complaint was upheld, partially upheld, or not upheld. The Patient Experience Team (PET) will randomly select a number of formal complaints where the team has been advised that complaint action plans have been completed and the identified actions implemented. Evidence to support that the actions have been implemented will be required to be sent to the PET in order to provide assure to the Board. Lessons learnt from complaints or concerns raised are shared at the Organisational Learning Forum so that Business Divisions can learn and share improvements as a result of investigations. Inform the Assistant Director/Medical Director of any staff training needs in relation to this policy arising from the investigation process Report on the implementation and completion of the action plan to the Patient Experience Team. 4.7 Head of Patient Safety and Experience The Head of Patient Safety and Experience will: Page 11 of 45

12 Consider any comments or complaints received which describe events considered to be an adverse or serious incident to identify the need to trigger a serious incident investigation to be undertaken. Oversee the production of the Triangulated Report. Provide information in the Quality Account and Trust Annual Report. Chair the Organisational Learning Forum to ensure that learning is shared via this forum across complaints, claims, incidents and safety, and that appropriate action is reported via the forum. Provide reports to the relevant groups as detailed below. 4.8 Risk Management Sub Group The Risk Management Sub Group is responsible for approving certain policies - including the Complaints Policy - as detailed in the Trust s Policy on Polices and to provide assurance to Policy and Planning Group level around its key responsibilities. It gives delegated responsibility to the Organisational Learning Forum (OLF) for the implementation of its work streams and action plans. 4.9 Organisational Learning Forum (OLF) The Organisational Learning Forum is responsible for developing and managing a structured approach to active organisational learning, where lessons learned are embedded in the Trust s culture and practice. The group will help to facilitate a fair blame (no blame) culture. This will include: the sharing of lessons learnt from concerns and complaints from one service to other areas of the Trust in order that any system failures discovered during investigations are adopted by the Trust as a whole and pockets of good practice are not isolated. The fostering of a learning and improvement culture, where all staff understand the value and benefits of learning from error and feel confident to report incidents Clinical Governance Group The purpose of the Clinical Governance Group is to enable the Board of Directors to obtain assurance that high standards of care are provided by the Trust and, in particular, that adequate and appropriate governance structures, processes and controls are in place throughout the Trust This will include: - monitoring trends in concerns and complaints received by the Trust and commissioning actions in response to adverse trends where appropriate - identifying areas for improvement in respect of concerns and complaints trends and ensuring appropriate action is taken. 5. PROCEDURE/IMPLEMENTATION 5.1 Policy and Procedure for dealing with Formal Complaints Stage I Local Resolution Page 12 of 45

13 1. Staff are encouraged to resolve complaints as far as is practicably possible within their local service area. However, where this is not possible, assistance should be given to the complainant for the complaint to be raised either with the Trust s Complaints Manager, or for more serious issues formally with the Chief Executive. Throughout the process, the Trust s Complaints Manager will be readily accessible to all concerned. Each complaint will be treated according to its individual nature and the wishes of the complainant, reinforcing the ethos of the new approach in making the whole experience of making a complaint simpler, more user-friendly and far more responsive to people s individual needs. It is the complainant s decision how they wish the complaint to be resolved and in what timescales. The complainant will be advised if the Trust cannot meet their wishes. When a complaint is received within the Trust, a letter of acknowledgement explaining the procedure will be sent to the complainant within three working days. See Appendix A. Complaints flow chart. The letter will acknowledge the person s concerns, ask if they wish to be contacted directly to discuss the issues raised, to agree a mutually agreed timescale for response, and if possible, what the complainant wishes as the outcome of the complaint. The complainant will be sent a Contact Preferences Form with the acknowledgement (see Appendix BI) which outlines their preferences. The letter also advises the complainant of the services provided by HealthWatch in terms of advocacy. The complainant is also advised by the Complaints Manager of other advocacy services available in their area. In line with national guidance and reporting requirements, the complainant will also be sent, with the acknowledgement, a diversity monitoring form (see Appendix Bii) If the complainant is not the service user, and is complaining on behalf of someone else, a consent form for the release of confidential information should be attached to the letter of acknowledgement, which should include information regarding service user confidentiality. Failure to return the signed form may result in a reduction of the amount and content of the information included in the letter of response, and this will be explained clearly to the complainant from the outset. 2. If the complainant is not willing or able to send a written complaint, but wishes the matter to be pursued, the Complaints Manager will arrange for a record of the complaint to be made and subsequently invite the complainant to sign and date it. If a complainant is unable or unwilling to sign a complaint letter written on their behalf, this does not invalidate the complaint and the procedure should still be followed. Where a complaint is made in writing, it is regarded as being made on the date it is received by the Complaints Manager. The complainant will be contacted to discuss the issues raised if the complainant requests this. This will normally be by the Complaints Manager or Assistant Director. Page 13 of 45

14 3. The timescale for resolution is expected to be dependant upon the severity and complexity of the complaint being made, but where possible, will be achieved within 25 working days. See also Page 6 of this policy for guidance on timescales. 4. The Complaints Manager/Assistant Director/Medical Director will consider the best way to respond to the complainant. This may include the offer of a meeting, a review by the Service Manager, or clinician for that speciality/service, or conciliation. The options will be discussed and agreed with the complainant. (See Appendix Bi Contact Preferences Form) In all cases, complainants should be advised of the role of the Independent Complaints Advocacy Service (ICAS) and how to contact them. Where a Director is named in a complaint, the Chief Executive will be informed, who will delegate an appropriate lead Director to coordinate the investigation. Where the Medical Director is named in a complaint, the Chief Executive will be informed, who will determine if external support/advice is appropriate to aid investigation of the complaint. If external support is not deemed to be required, the Trust s Deputy Chief Executive will lead the investigation, with appropriate medical advice. 5. Depending on the nature of the complaint and the wishes of the complainant, the complaint may be dealt with directly and without the need for a written response, via PALS. This will ensure prompt and appropriate action and help to resolve the complaint at a truly local level. 6. Complaints will be investigated appropriately in line with the ethos and procedures set out within the policy and within the timescale agreed with the complainant wherever possible. If an investigation cannot be completed on time, direct contact will be made with the complainant as soon as this is apparent, an apology provided and an extension period agreed and confirmed in writing. 7. When the investigation is complete, the Investigating Officer will submit a report of their findings, recommendations, full draft response and an action plan based on the recommendations, identifying areas for improvement where relevant and how this will be achieved to the Assistant Director/Medical Director. A copy should be retained by the Assistant Director/Medical Director to discuss and share with staff within the service in order to promote service improvements and organisational learning. The action plan should include actions to address all areas of the complaint where there has been deemed to be a less than satisfactory service. The action plan must have timescales for when these actions will be complete and an identified member of staff to lead on the action. The action plan will also include a risk rating using the NPSA Matrix (see Appendix D) The action plan will be monitored by the Complaints Manager to ensure that all actions are completed in a timely manner and the Assistant Director/Medical Director will be Page 14 of 45

15 expected to sign off completed action plans. This will usually be by means of a confirmatory from the Assistant Director/Medical Director. Reports will be provided monthly by the Complaints Manager to the Organisational Learning Forum on action plans completed and examples of action/learning undertaken. A more detailed report will be provided annually. 8. All draft complaint responses will be proof read, and amended where necessary, for quality assurance and monitoring purposes by the Complaints Manager, to check that all issues have been addressed/responded to, and that the style and content is in a consistent and accessible format for the complainant. The final draft will be approved by the Assistant Director/Medical Director prior to passing to the Chief Executive. 9. The Trust will respond to the complainant as agreed, identifying any organisational learning gained as a result of the complaint. The manner of the letter should be open, honest, empathetic, and include an apology where appropriate. Remember: It is both natural and desirable for those involved in treatment which produces an adverse result, for whatever reason, to sympathise with the patient or the patients relatives and to express sorrow or regret at the outcome. Such expressions of regret would not normally constitute an admission of liability, either in part or in full, and it is not the policy to prohibit them, or to dispute any payment, under any scheme, solely on the grounds of an expression of regret. Patients and relatives increasingly ask for detailed explanations of what led to adverse outcomes. Closely linked to this desire for information is the frequently expressed view that they will feel some consolation if lessons have been learnt for the future. (NHS Litigation Authority , Circular No, 02/02 to Chief Executives) All letters of response will also include a contact name, telephone number and details of who to contact, should the complainant wish to discuss the matter further. This will usually be the Assistant Director, Complaints Manager or Medical Director. Any action(s) agreed by the Trust should be conveyed to the complainant with an indication of when the actions are expected to be implemented and improvements achieved. 10. The response may include: an apology; an explanation and acknowledgement of responsibility; remedial action (reviewing or changing a decision provided to the complainant/revising policies, procedures or guidance/training and/or supervision of staff); financial redress for direct or indirect financial loss, loss of opportunity, inconvenience, distress, or any combination of these. Section 2 of the Compensation Act 2006, states, An apology, offer of treatment, or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty. 11. In the event that the complainant is unhappy with the response, further actions to achieve Local Resolution of the complaint may be taken. However, at this point, the Trust may be satisfied that all reasonable steps to resolve the complaint have been Page 15 of 45

16 taken and that Local Resolution is complete. If the Trust can demonstrate that all reasonable and appropriate action has been taken, proportionate to a complaint, it would not be seen as a failure on behalf of the Trust. It is recognised that all complainants can not be satisfied, and it is the role of the Parliamentary Health Service Ombudsman to consider whether the Trust has responded appropriately to the complainant, and identified opportunities for organisational learning and service improvements. 12. Following the investigation of the complaint, if any issues of a disciplinary nature need to be considered, this will be carried out in accordance with the Trust s Disciplinary Procedure. This policy will only be concerned with resolving the complaint, not with investigatory disciplinary issues. 13. Any member of staff involved in a complaint should be fully informed of any allegations at the outset and given an opportunity to reply to the Investigating Officer. See Appendix E - Guidelines for Writing a Statement/Report of Event. They should be advised of the right to seek the advice of their professional association or trade union before commenting on the complaint. 14. On receipt of a complaint where legal action is being taken, or the police are involved, the Government expects discussions to take place with the relevant authority (legal advisors, police, Crown Prosecution Service), to determine whether progressing the complaint might prejudice subsequent legal or judicial action. If so, the complaint will be put on hold, and the complainant will be advised of this. If not, an investigation into the complaint should commence. 15. If the Chief Executive or Complaints Manager considers the complaint may lead to litigation, advice should be sought from the Trust s legal advisors. When there is a concurrent investigation i.e. legal or disciplinary proceeding or referral to the Police or other statuary body, the Trust will consider how the complaint should be handled and will only proceed where it believes that its investigation would not compromise or prejudice the concurrent investigation. 16. If, throughout the above process, a complainant indicates either in writing or verbally that they intend to take legal action, the Claims Manager will be informed of the complainant s intention by the Complaints Manager. 17. A master file should be retained for a period of up to ten years in line with guidance. The file should incorporate all the relevant information and should be easily accessible upon request How joint complaints are handled between organisations In the event of a highly complex complaint, for example where the complaint relates to a number of different NHS services or organisations, one identified lead organisation will coordinate a response to the complaint following discussion and agreement between the relevant Complaints Managers. Each NHS organisation has a duty to co-operate/duty of co-ordinated handling, in relation to complaints. If there are valid reasons why this may not be possible, e.g. if it will unduly delay the response, the complainant should be informed and it is there decision whether they have a joint or separate response. See Appendix C. Page 16 of 45

17 Rotherham and Doncaster Protocol for Handling NHS/Social Services Inter-Agency Complaints. 5.2 Policy and Procedure for Dealing with Formal Complaints Stage II Referral to the Parliamentary Health Service Ombudsman (PHSO) If a complainant remains dissatisfied and the Trust believes it has taken all reasonable steps to resolve the complaint, the complainant should be advised of their right to refer their complaint to the Parliamentary Health Service Ombudsman. 5.3 Procedure for complaints concerning Local Authority services which have been integrated with RDASH services Where Local Authority services, eg Social Workers, are employed by the Local Authority but who form an integrated part of an RDASH team and are managed by that team, any complaints received about these services should in the first instance be dealt with using this policy. Following investigation and response, if the complainant is dissatisfied and the complaint clearly refers to functions of Local Authority Social Services which have been delegated to the Trust, a review under the relevant Local Authority complaints procedure should be invoked. Should the complaint remain unresolved following the Local Authority review, complainants should be advised to write to the Local Government Ombudsman. Complaints which clearly relate to the functions of Local Authority Social Services which have been delegated to the Trust will be copied to the relevant Local Authority for monitoring purposes. 5.4 Importance of Good Communication and Engaging All Stakeholders Many complaints by service users are rooted in communication failures, and these can be exacerbated by (but not exclusively) predisposing conditions of service users such as physical disabilities, medical conditions, anxiety, fear, bereavement, psychological withdrawal, and unfamiliar environments. Good communication skills are vital therefore in avoiding the occurrence of complaints and also the resolution of such concerns. Members of Trust staff are frequently able to resolve many concerns as soon as they arise by utilising such communication skills. Whilst many minor concerns may be immediately resolved, these issues should still communicated to the appropriate Service Manager for their consideration. This is so that they are able to assess the remedial action taken to resolve the complaint and also take reparative action to avoid a re-occurrence of the situation. There are a wide variety of ways in which service users are able to give their opinion, including service user groups, and these should be utilised by services to address any concerns immediately, wherever possible. Page 17 of 45

18 Each member of Trust staff has a responsibility to communicate effectively and sensitively to all service users and carers. Where language creates a barrier, staff have access to interpretation services. See Policy for provision of, access to and use of interpreters. It is a requirement that service users have access to (as frequent as is reasonable) adequate explanations about their care and treatment. All front line staff play a crucial role in undertaking this task. However, service users should also be able to discuss matters of concern with their consultant, other senior clinician or service manager should they wish to do so. The Trust operates an opinion/suggestion scheme called Your Opinion Counts. This invites feedback from service users and carers. This scheme acts as a conduit to improve services by addressing service user and carer concerns; it also provides positive feedback to Trust staff when compliments are made. However, when a formal complaint is raised via the Your Opinion Counts form, it must be dealt with promptly as set out in this policy Links with the Patient Advice and Liaison Service (PALS) The PALS Coordinator is available to discuss any comments and concerns with service users and is also able to provide a range of information on associated support services. However, the PALS should only be utilised for quick-fix/on-the-spot resolution to any minor concerns. Any continued dissatisfaction expressed by service users should be referred to the Complaints Manager. The Trust works with the principle that the earlier the concern is mutually resolved the less need there would be to progress to a complaint, claim or litigation Unreasonably persistent complainants The difficulty in handling unreasonably persistent complainants can place a strain on time and resources and cause unacceptable stress for staff. NHS staff are trained to respond with patience and understanding to the needs of all complainants, but there are times when there is nothing further that can reasonably be done to assist them or to rectify a real or perceived problem. In determining arrangements for handling such complainants staff should identify the stage at which a complainant has become unreasonably persistent but also recognise that even persistent complainants may have issues which contain some substance. The need to ensure an equitable approach is, therefore, crucial. This procedure should only be used as a last resort and after all reasonable measures have been taken, ie all efforts to resolve complaints following the NHS complaints procedures have been exhausted. This procedure should only be implemented following careful consideration by, and with authorisation of, the Trust's Chair and Chief Executive or nominated deputy and subsequently ratified by the Trust Board through the confidential agenda. Definition of Unreasonably Persistent Complaints / and or requests for information Page 18 of 45

19 Complainants and/or anyone acting on their behalf may be deemed to be unreasonably persistent where current or previous contact with them shows that they have met two or more (or are in serious breach of one) of the following criteria:- Persisting in pursuing a complaint where the NHS complaints procedure has been fully and properly implemented and exhausted. For example, where investigation is deemed to be 'out of time' or where the Parliamentary Health Services Ombudsman has declined a request for independent review Changing the substance of a complaint or persistently raising new issues or seeking to prolong contact by unreasonably raising further concerns or questions upon receipt of a response whilst the complaint is being dealt with. Care must be taken not to disregard new issues, which differ significantly from the original complaint. These may need to be addressed separately. Unwilling to accept documented evidence of treatment given as being factual, e.g. manual or computer records, or deny receipt of an adequate response despite correspondence specifically answering their questions/concerns. This also includes those persons who do not accept that the facts can sometimes be difficult to verify after a long period of time has elapsed. Focusing on a trivial matter to an extent, which is out of proportion to its significance and continue to focus on this point. It should be recognised that determining what is trivial can be subjective and careful judgement must be used in applying this criterion. Physical violence has been used or threatened towards staff or their families/associates at any time. This will, in itself, cause personal contact to be discontinued and will thereafter, only be pursued through written communication. All such incidents should be documented and reported using the Trust s Incident Policy, and notified as appropriate, to the police. The complainant has had an excessive number of contacts with the Trust when pursuing their complaint, placing unreasonable demands on staff. Such contacts may be in person, by telephone, letter, fax or electronically. Discretion must be exercised in deciding how many contacts are required to qualify as excessive, using judgement based on the specific circumstances of each individual case. The complainant has harassed or been abusive or verbally aggressive on more than one occasion towards staff - directly or in-directly - or their families and/or associates. If the nature of the harassment or aggressive behaviour is sufficiently serious, this could, in itself, be sufficient reason for classifying the complainant as unreasonably persistent. Staff must recognise that complainants may sometimes act out of character at times of stress, anxiety or distress and should make reasonable allowances for this. All incidents of harassment or aggression must be documented in accordance with the Trust s Incident Reporting Policy. The complainant is known to have electronically recorded meetings or conversations without the prior knowledge and consent of the other parties involved. It may be necessary to explain to a complainant at the outset of any Page 19 of 45

20 investigation into their complaint that such behaviour is unacceptable and can, in some circumstances, be illegal. Display unreasonable demands or expectations and fail to accept that these may be unreasonable once a clear explanation is provided to them as to what constitutes an unreasonable demand, i.e. insisting on responses to complaints being provided more urgently than is reasonable or recognised practice, presenting similar or substantially similar requests for information. Options for Dealing with Unreasonably Persistent Complainants and/ or Persons requesting information When complainants have been identified as unreasonably persistent, in accordance with the above criteria, the Chair and Chief Executive (or their nominated deputy) will decide what action to take. The Chief Executive (or deputy/representative) will implement such action and notify the individual(s) promptly, and in writing, the reasons why they have been classified as unreasonably persistent and the action to be taken. This notification must be copied, for the information, to others involved in the complaint, eg practitioners, advocates, Independent Complaints Advocacy Service, Member of Parliament, etc. Records must be kept, for future reference, of the reasons why the decision has been made to classify as unreasonably persistent and the action taken. The Chair and Chief Executive (or delegated deputies/representatives) may decide to deal with unreasonably persistent complainants in one or more of the following ways: Once it is clear that one or more of the criteria in section 3 has been seriously breached, it may be appropriate to inform the individuals, in writing, that they are at risk of being classified as unreasonably persistent. A copy of this procedure should be sent to them and they should be advised to take account of the criteria in any future dealings with the Trust and its staff. The complainant should be advised that they can seek advice from the Independent Complaints Advocacy Service or the Parliamentary Health Services Ombudsman with regard to taking their complaint further. The Trust should try to resolve the complaint before invoking this procedure by drawing up a signed agreement with the complainant, involving the relevant staff if appropriate, setting out a code of behaviour for the parties involved. If this agreement is breached, consideration would then be given to implementing other actions as outlined below. The Trust can decline further contact either in person, by telephone, fax, letter or electronically, or any combination of these, provided that one form of contact is maintained. Alternatively, a further contact could be restricted to liaison through a third party. A suggested statement has been prepared for use if staff need to withdraw from a telephone conversation. This is shown in the attached staff operational guidance. Notify complainants in writing that the Chairman or Chief Executive (or delegated deputies/representatives) has responded fully to the complaint, has exhausted local Page 20 of 45

21 resolution, and that continuing contact on the complaint will serve no useful purpose. This notification should state that that no further correspondence will be sent and that further communications will not responded to. Inform complainants that in extreme circumstances the Trust reserves the right to refer unreasonably persistent complaints to the organisation s solicitors/the Information Commissioner and/or the police. Temporarily suspend all contact, whilst seeking legal advice or guidance. Withdrawing Unreasonably Persistent Status Once classified as unreasonably persistent, this status may be withdrawn if, for example, a more reasonable approach is subsequently demonstrated or if they submit a further complaint for which the normal complaints procedures would be appropriate. Staff should use careful judgement and discretion in recommending or confirming that unreasonably persistent status should be withdrawn. Discussions should be held with the Chairman and Chief Executive (or their delegated deputies/representatives) and, subject to their approval, normal contact and procedures will be resumed. Monitoring Applications will be reported and monitored through the Risk Management Sub Group and reported to the Board of Directors by exception by the Executive Director of Business Assurance. Staff Guidance for Handling Habitual or Unreasonably Persistent Complainants The following form of words or a very close approximation should be used by any member of staff who intends to withdraw from a telephone conversation with a complainant. Grounds for doing so could be that the complainant has become unreasonably aggressive, abusive, insulting or threatening to the individual dealing with the call or in respect of other NHS personnel. It should not be used to avoid dealing with a complainant's legitimate questions / concerns which can sometimes be expressed extremely strongly. Careful judgement and discretion must be used in determining whether or not a complainant's approach has become unreasonable. FORM OF WORDS "I am afraid that we have reached the point where your approach has become unreasonable and I have no alternative but to discontinue this conversation. Your complaint(s) will still be dealt with by the Trust in accordance with the NHS complaints procedure. I am now going to put the telephone down but wish to assure you that the situation will shortly be confirmed in writing to you." FOLLOW-UP ACTION The incident should immediately be reported to the Complaints Manager and the Head of Patient Safety and Experience and agreement reached on future means of Page 21 of 45

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