NHS FORTH VALLEY. COMPLAINT POLICY and PROCEDURE. T Horne, Complaint Manager

Transcription

1 NHS FORTH VALLEY COMPLAINT POLICY and PROCEDURE Author: T Horne, Complaint Manager

2 1. Background 1.1. NHS Forth Valley is a learning, patient-focused organisation that welcomes feedback from users of its services. Feedback may be received in the form of a thank you, a suggestion or comment, a verbal concern or a formal complaint. All forms of feedback provide opportunities for reflection, learning and, where appropriate, change Although most service users are satisfied following their contact with NHS Forth Valley, there will be occasions when an individual or family will be dissatisfied with the explanation given and want to complain. When this happens the service provider will attempt to resolve the complaint as directly and quickly as possible, with the primary aim of being fair to both the person making the complaint and to staff complained against NHS Forth Valley will provide an open, accountable and accessible complaint system to dissatisfied service users. This policy and procedure sets out how verbal concerns and formal complaints about services provided or commissioned by NHS Forth Valley will be handled and, additionally, how NHS Forth Valley will support individuals who wish to complain about services provided by Family Health Service (FHS) practitioners (doctors, dentists, opticians and pharmacists) Forth Valley Complaint Policy and Procedure is based on: Statutory Directions to Health Boards, Special Health Boards and the Agency on the Complaints Procedure, issued under cover of Health Department Letter HDL (2005) 15, dated 31 st March The Scottish Executive Health Department NHS Complaints Procedure Guidance: Can I help you? Learning from Comments, Concerns and Complaints, issued April Related legislation: The NHS (General Medical Services Contracts) (Scotland) Regulations 2004 The NHS (General Dental Services) (Scotland) Amendment Regulations 1996 The NHS (Pharmaceutical Services) (Scotland) Amendment Regulations 1996 The NHS (General Ophthalmic Services) (Scotland) Amendment Regulations Establishment of the Complaint Procedure and Policy 2.1. This Complaint Procedure and Policy shall be formally adopted by NHS Forth Valley Board and updated as appropriate. The Complaint Procedure and Policy shall be in writing and a copy will be provided free of charge to anyone who requests it The Complaint Policy and Procedure is a guide, principally for staff, to mandatory aspects of complaint handling, and is not meant to be all-embracing or to cover every contingency. Forth Valley NHS Board remains responsible for ensuring the 1

3 appropriateness of actions taken or the interpretation of related legislation. Within the scope of the Statutory Directions, local initiatives and training will be developed and implemented in a way that ensures the management and operation of the Complaint Policy and Procedure best meets local circumstances. 3. Matters excluded from consideration under the Complaint Procedure and Policy 3.1. Statutory Directions to Health Boards require that the following complaints are excluded from the scope of the Complaint Policy and Procedure: A complaint made by an NHS body 1 which relates to any matter connected with the exercise by another NHS body of its functions. A complaint made by a primary care provider 2 which relates either to any matter connected with the exercise by an NHS body of its functions or to the contract or arrangements under which it provides primary care services. A complaint made by an employee of an NHS body about any matter relating to the employee s contract of employment. A complaint made by an HBPMS 3 contractor about any matter relating to arrangements made by a Health Board with that HBPMS contractor. A complaint which is being or has been investigated by the Scottish Public Services Ombudsman. A complaint arising out of an alleged failure to comply with a request for information under the Freedom of Information (Scotland) Act A complaint about which the complainant 4 has stated that the complainant intends to, or is, taking legal proceedings. A complaint about which an NHS body is taking or proposing to take disciplinary proceedings in relation to the substance of the complaint against the person who is the subject of the complaint The Complaint Policy and Procedure is also unable to process complaints about: Private care and treatment or services, including private dental care or privately supplied spectacles. Services not provided or funded by the NHS for example, the provision of private medical reports. 1 NHS body means a Health Board, Special Health Board and the Agency 2 primary care provider means a person who provides primary medical services in accordance with a general medical services contract 3 HBPMS contractor means a person or body which is providing primary medical services under arrangements made with a Health Board 4 complainant means a person who either makes a complaint about any matter connected with the exercise by an NHS body of its functions or the provision of services by a primary care provider 5 person who is subject to the complaint means any person or persons who: (a) are identified in the complaint as the subject of the complaint; (b) where the complainant does not identify a named person against whom the complaint is brought, a person who, in the opinion of the complaints officer is best able to deal with the matters that are the subject of the complaint; or (c) in the case of a complaint about the provision of services by a primary care provider, the primary care provider; 2

4 Matters where other organisations have responsibility for example Social Services or the Care Commission. In such instances the complaint will be acknowledged and forwarded to the appropriate recipient. 4. Roles and Responsibilities 4.1. NHS Forth Valley Board NHS Forth Valley Board will ensure that all employed staff or Family Health Service (FHS) contractors (and their employed staff) providing services on their behalf are aware of and are trained in the procedures to be followed when dealing with patient feedback and complaints. NHS Forth Valley Board will also ensure that complainants, whether patients, their carers, families or visitors, can access advocacy, independent advice and support services, as well as the Health Rights Information Scotland s leaflet: Making a Compliant about the NHS. Services must recognise and respond sensitively to the individual needs, background and circumstances of people s lives. NHS Forth Valley Board will ensure that this requirement, which is underpinned by a statutory duty to promote equality and diversity, as well as equal opportunities, 6 applies to local arrangements for handling complaints, while being as fair as possible to staff and contractors who are the subject of complaints The Race Relations Act 7,8 places a legal obligation on NHS Forth Valley Board to actively promote race equality in all its work and requires the Board to ensure compliance with the general duty to: Eliminate unlawful racial discrimination Promote equality of opportunity, and Promote good race relations Consequently, NHS Forth Valley Board will ensure that arrangements for handling complaints fully meet the needs of potentially disadvantaged individuals or groups. This is to include ready access to translation and interpretation services, including those for people with sensory impairment, and the provision of appropriate independent support and advocacy services to potentially disadvantaged individuals or groups. 4.3 NHS Forth Valley is a member of the Central Scotland Racist Attacks and Harassment Multi- Agency Strategy Group (RAHMAS). As part of the commitment 6 NHS Reform (Scotland) Act The Race Relations Act 1976 (Statutory Duties) (Scotland) Order The Race Relations (Amendment) Act

5 to RAHMAS, NHS Forth Valley will formally record racist incidents raised by means of complaints and comments. 4.4 The Scottish Public Services Ombudsman Act 2002 requires NHS Forth Valley Board to take reasonable steps to publicise: The right conferred by the Act to make a complaint to the Ombudsman; The time limit for doing so; and How to contact the Ombudsman NHS Forth Valley Chief Executive 4.4. The Chief Executive of NHS Forth Valley is statutorily responsible for the quality of care delivered, and will appoint a named member of the Board Executive Team as the Director with responsibility for delivering the organisation s patient feedback and complaints processes and for ensuring that organisational learning takes place as a result of comments and complaints received The appointed Director will oversee the way in which the Board s Community Health Partnerships (CHPs), Units and independent contractors deal with patient feedback and complaints. He/she will ensure that each of the Board s CHPs, Units or other approved managerial sub-structures appoint Complaint Officer(s) of sufficient seniority to be able to deal with any issues raised by the NHS Complaints Procedure quickly and effectively without needing to refer, in all but the most exceptional circumstances, to more senior staff Complaint Officer(s) will be readily accessible to patients, the public, staff and independent FHS contractors. Arrangements shall be such that the role of Complaint Officer and complaint processing is not interrupted by one individual s annual or sick leave The detailed functions of Complaint Officer(s) are set out in the Scottish Executive Health Department NHS Complaints Procedure Guidance The Public Services Ombudsman 4.9. The Ombudsman can investigate complaints from aggrieved persons which make allegations that they have sustained injustice or hardship as a result of maladministration or service failure 9 on the part of an authority within the Ombudsman's jurisdiction. Such authorities include all NHS bodies and family health service providers in Scotland The Ombudsman s office will generally consider complaints only when they have been fully considered under NHS Forth Valley s internal complaint procedures - 9 Maladministration is generally taken to mean a failure in administrative procedures or processes, and service failure, as defined in statute, as any failure in a service provided by the authority, or any failure of the authority to provide a service which it was the function of the authority to provide. 4

6 although this requirement can be waived in exceptional circumstances. Complaints should generally be made to the Ombudsman within twelve months of the events giving rise to them, or within twelve months of the complainant becoming aware that there were grounds for complaint, although this requirement may be waived if there are special circumstances. 5. Local Resolution 5.1. Local resolution seeks to provide prompt investigation and resolution of a complaint or concern as near as possible to the source of the complaint or concern, with the aim of satisfying the person raising the issue(s) while being scrupulously fair to staff complained against. The process should be open, honest, transparent, free from discrimination and conducted in a polite and conciliatory manner NHS Forth Valley staff involved in a complaint or complaint investigation will abide by the NHS Code of Practice on Protecting Patient Confidentiality and all relevant related legislation, for example, the Data Protection Act and Access to Health Records Act. 6. Concerns not Amounting to a Formal Complaint 6.1. People may choose to raise issues about which they are unhappy without wishing to make a formal complaint. In many instances, they will simply be concerned and wish to receive an explanation and, if something has gone wrong, an apology The majority of such concerns will be verbal in nature, and received by the senior member of staff in charge of a ward or department. A concern should be handled in as informal a manner as possible, and in a way which is acceptable to the person raising it. Staff dealing with a concern should: Ensure that the patient s immediate health care needs are being met before dealing with the suggestion or comment rapidly, sensitively and confidentially. Discuss the matter of concern with the complainant, encouraging them to speak freely. The complainant should be advised of the assistance available from Advocacy and other Services. Encourage staff or contractors subject to a complaint to seek advice and support from members of their immediate teams and, if appropriate, from their professional bodies. Provide an honest and objective response. The response should be given verbally, unless the complainant has requested a written reply or the member of staff considers a letter is appropriate. Verbal responses should be given on the spot or, where this is not possible, a timescale for a way forward should be agreed with the complainant. The response should include an explanation, an apology where appropriate, and indicate what is being done to avoid the problem happening again. Any oral or written response about a clinical matter should be agreed with an appropriate clinician and, where appropriate, an indication of the result of any Significant Event Analysis should be shared with the complainant. 5

7 Where a complainant has requested it, issue a written response, approved where appropriate by a clinician or senior member of staff. Details of the concern and a copy of any written response should be sent to the Complaint Manager. Consider, based on their assessment of the situation, the nature of the concern, and their knowledge of any previous similar situation(s), what action is appropriate to share the information and ensure that the organisation learns from the process When staff feel unable to respond themselves they can: Call on the support of an appropriate senior member of staff or Offer the complainant the option of discussing the matter with someone not directly involved in their care, for example someone from the organisation s complaints staff When asked to provide this type of support, staff should, ideally, respond immediately, but when this is not possible, they should agree a timescale for the way forward with the complainant The complainant should be advised of the next appropriate step should they remain unhappy after receiving a verbal or written response. As there is a very fine line between a complaint and a concern, the complainant should be given the opportunity at the outset to decide if they wish the matter they are raising to be considered more formally under the NHS Complaints Procedure In order to ensure that lessons are learned from concerns raised, a record of all verbal concerns should be passed to the Complaint Manager within three working days. This should include details of any remedial action taken. 7. Formal Complaints 7.1. A complaint may be made in writing, by phone or in person 10. Complaints may be made by: A patient or former patient and visitors. Any person who is affected or likely to be affected by the action, omission or decision of the NHS body which is the subject of the complaint. Any appropriate person in respect of a patient who has died, e.g. the next of kin or their agent. Someone on behalf of existing or former patients, e.g. a patient s parent, carer, guardian or a visitor; an MP, MSP or local Councillor; or an advocate or member of an independent advice and support organisation. A relative or other adult person who has a legitimate interest in the person s welfare where the person is incapable of making a complaint. 10 Complaints can also be made by, for example: fax, , textphone and typetalk. In such instances, the correspondent should be advised that these methods may not guarantee confidentiality. A name and home address will always be obtained and the method of correspondence for the future agreed. The facility exists for complaints to be made direct to the Complaint Service. 6

8 7.2. Where the person referred to in the complaint is a child, a complaint may be made by: Either parent or in the absence of both parents, the guardian or other adult person who has care of the child; A person duly authorised by the local authority, where the child is in the care of that local authority under the Children (Scotland) Act 1995( 11 ); A person duly authorised by a voluntary organisation by which the child is being accommodated under the provisions of that Act If in the course of investigating a complaint it becomes clear that the child is Gillickcompetent 12 and capable of pursuing the complaint themselves then their consent should be obtained Where someone other than the patient or their authorised agent wishes to make a complaint, that person must be able to demonstrate that they have obtained the patient s consent to: Make a complaint on their behalf. Members of staff accessing the patient s health records (if this should prove necessary as part of the investigation of the complaint) on a need-to-know basis and to the extent necessary in considering the complaint and communicating about it The Complaint Manager will, whenever practicable and possible, involve the person making the complaint from the outset, establishing the outcome the person would wish as a result of complaining. If the person s expectations are entirely unrealistic, they should be informed of this gently, but firmly The Complaint Manager has discretion to refuse to deal with a concern or complaint made on behalf of a patient if they consider the person making the complaint is not an appropriate representative of the patient; or has no legitimate interest in the patient s welfare or has no right to pursue matters on the patient s behalf. In such instances, the complainant must be provided with a written explanation for that decision. The Complaint Manager may nominate someone else to act on behalf of the patient. The complainant may appeal to the Chief Executive in writing about these decisions If a complaint appears to the Complaint Manager to relate to matters which may require to be dealt with: Under Staff Code of Conduct procedures By one of the professional regulatory bodies By a Fatal Accident Inquiry As an investigation of a criminal offence As a legal matter ( 11 ) 1995 c The Access to Health Records Act 1990 allows a child under 16, deemed 'Gillick competent' by a doctor, to veto the parent s access to medical information held by that doctor. 7

9 Under the provisions of the Freedom of Information Act the Complaint Manager will pass it immediately to the person who deals with these matters. This may occur at any time during the processing of a concern or formal complaint Investigation and processing of any aspects of a concern or complaint being dealt with in terms of paragraph 7.7 will be proceeded with only if this does not, or will not, compromise the other investigation When action is implemented under another procedure or by another organisation before the investigation of the concern or complaint is completed, the complainant will be informed. The complainant will be advised regarding the complaint investigation up to that point, together with, where possible, an indication of the expected timescale for the process. Processing of any outstanding unresolved element of the concern or complaint will recommence when the other investigation is complete. 8. Time Limits for making a Complaint 8.1. The recommended timescale for accepting a complaint is: up to 6 months after the event which is the cause for the complaint, or up to 6 months from the patient becoming aware of a cause for complaint; but, normally, no longer than 12 months from the event These guidelines are to be operated flexibly and complaints should be accepted where it would have been unreasonable for the complainant to make it earlier and where it is still possible to investigate the facts. A decision not to extend the above timescales should be agreed by the Chief Executive. A complainant can appeal to the Scottish Public Services Ombudsman against a decision not to accept their complaint. 9. Acknowledging a Complaint 9.1. When a person wishes to proceed with a complaint, the Complaint Manager should define a statement of complaint (this being those matters complained of which are to be investigated) confirm them in a letter of acknowledgement, and give the complainant the opportunity to amend the statement of complaint. Complaints should be acknowledged or a response to the complaint issued in writing within three working days of receipt. The acknowledgement letter should be personalised to the individual, and should normally thank the complainant for raising the matter and also, when appropriate, express sympathy or concern over the incident The acknowledgement letter should also: Outline the proposed course of action to be taken or the investigations proposed or conducted and applicable timescales. 8

10 Offer the opportunity to discuss issues either with a member of the complaints staff or, if appropriate, with a senior member of staff. Provide information about the availability of independent support and advice, or the possible use of conciliation where this may help and is agreeable to both parties First class post or, exceptionally, special/recorded delivery should be used in correspondence both with the person making a complaint and, if applicable, with the complained against. All communications should be marked Private and Confidential or Personal. 10. The Complaint Investigation Investigation of a complaint should be completed and the response made, wherever possible, within twenty 13 working days following the date of receipt of the complaint. Where it appears the twenty day target will not be met, the person making the complaint must be informed of the reason for the delay with an indication of when a response can be expected. The investigation should not, normally, be extended by more than a further twenty working days If it becomes necessary to ask the person making the complaint to agree to a further extension to the investigation period, they should be given a full explanation in writing of the progress of the investigation, the reason for the requested further extension, and an indication of when a final response can be expected. The letter should also indicate that the Ombudsman may be willing to review the case if the complainant does not accept the reasons for the continued delay The Complaint Manager will ensure that all information relevant to the investigation is recorded and kept securely in a relevant file. Complaint records will be kept separate from health records, subject only to the need to record information which is strictly relevant to the patient s health in their health record The investigation shall be conducted impartially, and the investigating officer must approach the complaint with an open mind, being fair to all parties. The investigation must not be adversarial and must demonstrate the principles of fairness and consistency The investigation must be conducted in a manner that is supportive to those involved and take place in a blame free atmosphere. Anyone identified as the subject of a complaint will be provided with a written copy of the complaint, and the reasons for the investigation, giving them a proper opportunity to talk to the investigating officer and ensuring they are kept informed of progress. All involved should be informed of the support services available to them. National guidance which sets out how complaints should be dealt with indicates that staff interviewed in the investigation 13 For Family Health Services, a full response should be provided within 10 working days of receipt of the complaint. Where it appears the 10 day target cannot be met, the person making the complaint must be informed of the reason for the delay with an indication of when a response can be expected. Normally, this should be within 20 working days of the date of receipt of the complaint 9

11 should be given a written note of the meeting, briefly outlining the questions asked and the answers given, and informed this may be required at a later stage by the Ombudsman When the complaint involves clinical issues, the draft findings and response must be shared with the relevant clinician(s) to ensure the factual accuracy of any clinical references. 11. Completing Local Resolution Local resolution is completed by the appropriate Chief Executive 14 reviewing the case to ensure that all necessary investigations and actions have been taken. If the Chief Executive is satisfied that the complaints process is complete, he/she issues a response letter to the person making the complaint. The letter should be clear, simple, fair and easy to understand. It should avoid technical terms, but where these must be used to describe a situation, events or condition, an explanation should be provided The complaint response should: Address all the issues raised and show that each element has been fully and fairly investigated. Include an apology where things have gone wrong. Report action taken or proposed to prevent any recurrence. Indicate that the Chief Executive, or a named member of staff, is available to discuss or clarify any aspect of the response. Indicate that if the complainant is not satisfied with the outcome of local resolution, they may seek a review by the Scottish Public Services Ombudsman. Details of how to contact the Ombudsman s office should be given Where circumstances are such that the Chief Executive has nominated a senior officer to sign off complaint responses on their behalf, arrangements should be made to ensure that the Chief Executive maintains an overview of the issues raised in complaints, the responses given, and that appropriate organisational learning takes place Once the final response has been signed and issued, complaints staff will file all correspondence, and liaise with local senior managers to ensure: All necessary follow-up action is taken The outcome is shared with those involved in the investigation and named in the complaint. Any necessary staff support or counselling is provided A report is provided to the Board s Clinical Governance Committee. 14 Or in Family Health Services the Senior or Executive or Complaints Partner 10

12 11.5. In very serious cases NHS Forth Valley Board will consider a formal debrief for those staff or contractors (or contractors staff) involved in the complaint. 12. When Local Resolution Fails It may be that in some cases all reasonable attempts at local resolution fail in whole or in part. If so, the Chief Executive should review matters to ensure that all necessary investigations and actions have been taken and, if satisfied that local resolution is exhausted, issue a letter to the person making the complaint which indicates: How the issues raised in the complaint have been investigated; reports on action taken or proposed to prevent any recurrence of individual elements; and highlights any areas of disagreement and why no other action can be taken. That the Chief Executive, or a named member of staff, is available to discuss or clarify any aspect of the letter. That the complainant may seek a review by the Scottish Public Services Ombudsman. 13. Learning from Complaints NHS Forth Valley Board will ensure there are area-wide procedures in place for collecting and disseminating the information, themes and good practice gained from patients views, experiences and complaints and that such information is used to improve service quality. Local managers and Family Health Service practitioners will be encouraged to share this information and seek feedback and suggestions for further improvement. 14. Joint complaints Where a complaint relates to the actions of NHS Forth Valley and another NHS body, the respective Complaint Managers will agree which organisation will take the lead in co-ordinating the response. The person making the complaint must be informed about who will take the lead in dealing with the complaint. There shall be full co-operation between the organisations to resolve the complaint Where a complaint covers more than one statutory sector, for example Health and Social Services, NHS Forth Valley and Social Services must agree who has the leading role and inform the person making the complaint which matters are being dealt with under which procedure and work together to ensure that all matters raised in the complaint are investigated Forth Valley NHS Board will ensure an appropriate policy is in place across the Board area for dealing with joint complaints and that staff are trained and supported to enable them to advise complainants about related NHS and social work service responsibilities. 11

13 14.4. Where a complaint is primarily about a regulated care home it will normally be the Care Commission 15 that will investigate it, and in so doing they will liaise directly with any NHS provider named in the complaint. 15. Grievance and disciplinary procedures The NHS Complaint Procedure does not address the concerns of staff. There are separate procedures for handling staff grievances. NHS Circular GEN(1993)10 and associated guidance sets out the rights and responsibilities of staff when raising issues of concern about health care matters. Local procedures also cover more general grievances NHS Staff may complain about the way they have been dealt with under the NHS Complaint Procedure and, provided they have exhausted the local grievance procedure, may take the matter up with the Public Services Ombudsman. 16. Unreasonably demanding or persistent Complainants NHS Forth Valley and Family Health Service providers in Forth Valley should ensure that, as part of their local complaints process, they have an agreed policy for considering whether a complainant is unreasonably demanding or persistent. Information on the handling of unreasonably demanding or persistent complaints will be made available to the public as part of material on the complaints process as a whole NHS Forth Valley will: Make it clear to all complainants, both at initial contact and throughout processing of their complaint, what can or cannot be done in relation to their complaint. The aim is to be open and realistic, and not raise hopes or expectations on the part of complainants that cannot be met. Deal fairly, honestly, consistently and appropriately with all complainants, including those whose actions are considered unacceptable. All complainants have the right to be heard, understood and respected. NHS Forth Valley staff and contractors (and contractors staff) who are subject to a complaint have the same rights. Provide a service that is accessible to all complainants, while retaining the right, where it is considered a complainant s actions are unacceptable, to restrict or change access to the service

14 Ensure that other complainants and NHS Forth Valley staff do not suffer any disadvantage from complainants who act in an unacceptable manner. 17. Unacceptable Actions by Complainants It is recognised that people may act out of character in times of trouble or distress. There may have been upsetting or distressing circumstances leading up to a complaint being made. NHS Forth Valley will not view behaviour as unacceptable just because a complainant is forceful or determined, as this can be an advantage when pursuing a complaint. However, the actions of complainants who are angry, demanding or persistent may result in unreasonable demands on the Complaint Service or inappropriate behaviour towards staff. Such actions will be considered unacceptable and managed as follows: 18. Aggressive, Unacceptable or Abusive Behaviour NHS Forth Valley expects staff to be treated courteously and with respect, and will consider anger which escalates into violence, abuse or aggression towards staff as unacceptable This category of behaviour considered under this section is not restricted to acts of aggression that may result in physical harm. It also includes behaviour or language (whether oral or written) that may cause staff to feel afraid, threatened or abused Examples of behaviours grouped under this heading include threats; physical violence; personal verbal abuse; derogatory remarks and rudeness. Inflammatory statements and unsubstantiated allegations can also be abusive and unacceptable behaviour, as can attempts on the part of a complainant to make unauthorised recording(s) of meeting(s) or face to face/telephone conversation(s) without the prior knowledge or consent of the parties involved The threat or use of physical violence, verbal abuse or harassment towards Complaint Service or other staff is likely to result in the ending of all direct contact with the complainant. Incidents may be reported to the police. This will always be the case if physical violence is used or threatened Correspondence (letter, fax or electronic) that is abusive to staff or contains allegations that lack substantive evidence may not be dealt with. When this happens, the Complaint Service will ask the complainant to stop using such language, inform them that their correspondence may be referred to NHS Forth Valley lawyers, will not be responded to if they do not stop, and that future contact may require to be through a third party Complaint Service staff will end telephone calls or face to face contact if the complainant is considered aggressive, abusive or offensive. The staff member involved has the discretion to make this decision, tell the complainant that his/her 13

15 behaviour is unacceptable, and that the telephone call or meeting will be terminated if the unacceptable behaviour does not stop. 19. Unreasonable Demands Complainants may make unreasonable demands on the Complaint Service as a result of the amount of information they seek, the nature and scale of service they expect or the number of approaches they make. What amounts to unreasonable demands will always depend on the circumstances surrounding the behaviour and the seriousness of the issues raised by the complainant Examples of actions grouped under this heading include demanding responses within an unreasonable time-scale; unwillingness to accept factual documented evidence in spite of receiving correspondence specifically addressing the issues asked; refusal to accept that facts can sometimes be difficult to verify when a long period of time has elapsed; insisting on seeing or speaking to a particular member of staff; continual phone calls, letters or requests for information; not identifying precise issues that require to be investigated and/or a refusal to accept that the complaint(s) raised are out with the remit of NHS Forth Valley; focusing on a trivial matter to the extent that is out of proportion to its significance and persistently doing so; and repeatedly changing the substance of the complaint or raising unrelated concerns NHS Forth Valley will consider demands as unacceptable and unreasonable if they start to impact substantially on the work of staff, such as taking up an excessive amount of staff time to the disadvantage of the Complaint Service, patients, clients, visitors or other complainants or functions. 20. Unreasonable Persistence Some complainants will not or cannot accept that NHS Forth Valley Complaint Service is unable to assist them further or give a level of service other than that already provided. Complainants may persist in disagreeing with the action or decision taken in relation to their complaint or contact the Complaint Service persistently about the same or similar issues Examples of actions grouped under this heading include persistent refusal to accept a decision made in relation to a complaint, persistent refusal to accept explanations relating to what the Complaint Service can or cannot do; continuing to pursue a complaint without presenting any new information; and persistently raising new complaints. The way in which such complainants approach the Complaint Service may be entirely reasonable, but it is their persistent behaviour in continuing to do so that is not NHS Forth Valley will consider the actions of persistent complainants to be unacceptable when they take up what is regarded as being a disproportionate amount of time and resources. 14

16 21. Action to be taken to classify a Complainant as unreasonably demanding or persistent Before classifying a complainant as unreasonably demanding or persistent, consideration will be given to dealing with future contact in one or more of the following ways: By drawing up a signed agreement with the complainant (and, if appropriate, involving any relevant clinician in this). The agreement will set out a code of behaviour for the parties concerned if the complaint is to continue to be processed. Declining contact with the complainant either in person, by telephone, by fax, by letter, or any combination of these, provided that one form of contact is maintained. Temporarily suspending all contact with the complainant or the investigation of the complaint while legal advice or other guidance is sought by NHS Forth Valley from relevant agencies A complainant will only be classified as unreasonably demanding or persistent when it can be shown that: The NHS Complaint Procedure has been fully and correctly implemented. All reasonable measures have been taken to resolve the complaint. No material element of the complaint has been overlooked or inadequately addressed and a full written case has been submitted to and approved by the Chief Executive 16 and Chair of NHS Forth Valley Where the decision is taken to classify a person as an unreasonably demanding or persistent complainant, the Chief Executive 17 will notify the complainant in writing of the reasons why they have been so classified, and the action which will be taken regarding future correspondence, requests for meetings or telephone calls. The letter will provide a summary of NHS Forth Valley s position on the complaint(s), indicating that: The points raised have been responded to fully and, as there is nothing more to add, it is considered continuation of contact on the matter will serve no useful purpose. That further correspondence will simply be acknowledged but not otherwise responded to unless it raises a new matter of substance. In extreme cases the correspondent might also be advised that the right is reserved to pass future correspondence to solicitors The notification letter will be copied to appropriate others involved in the complaint process with the complainant, e.g. a conciliator, an MSP, an MP, an independent 16 Or in Family Health Services the Senior or Executive or Complaints Partner 17 Or in Family Health Services the Senior or Executive or Complaints Partner 15

17 advocate. A record will be kept of the reasons why a complainant has been designated as unreasonably demanding or persistent When consideration is being given to designating an individual from an equality group as an unreasonably demanding or persistent complainant, appropriate checks will be made to ensure that the decision not based on institutional discrimination or on a lack of knowledge of the specific needs of that individual. 22. Reviewing or Withdrawing Unreasonably Demanding or Persistent Status The designation of unreasonably demanding or persistent complainant will be reviewed at a later date if such a review date was set at the outset by the Chief Executive and Chair or if, for example, the complainant demonstrates a more reasonable approach The decision to withdraw the designation of unreasonably demanding or persistent complainant will be made by the Chief Executive and Chair of NHS Forth Valley. Subject to their approval, the normal contact arrangements under the NHS complaints procedure will then be resumed. The change of status for the complainant will be copied to anyone previously informed of the decision to classify the correspondent as unreasonably demanding or persistent. 23. Training NHS Forth Valley recognises the importance of providing staff, contractors and contractors staff with the opportunity to access training on complaints handling. This is provided at induction programmes and at bespoke sessions. Further sessions are arranged as required to address the requirements of specific groups of staff. 24. Criminal Investigations, Independent Inquiries and Claims for Negligence In the early part of the complaints process it may not be clear whether the complainant simply wants an explanation and apology, with assurances that any failures in service will be rectified for the future, or whether they are in fact seeking information with litigation in mind. It is important that at this stage all complainants are treated with an open and sympathetic approach Staff should not infer that a person making a complaint has decided to take formal legal action, even if the initial communication is via a solicitor s letter. However, if a complaint reveals a prima facie18 case of negligence, or the likelihood of legal action, the Complaint Manager will inform, and seek advice from, those responsible for dealing with risk/claims management. Notwithstanding that, prima facie 18 At first sight or impression 16

18 evidence of negligence will not delay a full explanation of events and, if appropriate, an apology, bearing in mind that an apology is not an admission of liability. Where an independent contractor (or contractors staff) is/are involved, they will be informed, at the earliest opportunity, of the fact that legal action may be likely Where a complainant indicates an intention to instigate or instigates legal action, the complaints procedure will be immediately suspended. The Chief Executive 19 will advise the person making the complaint and any person(s) named in the complaint of this decision in writing, and copies of all papers relating to the complaint will be passed to the person appointed by NHS Forth Valley to deal with such matters The NHS Complaint Procedure cannot deal with matters subject to a criminal investigation or an independent inquiry into a serious incident. In such instances, consideration of those parts of the complaint affected by such an investigation must be suspended until the other investigation is concluded. The Chief Executive will advise the complainant of this in writing Where such an investigation is initiated before the NHS Complaint Procedure has been completed, a full report of the investigation to that point will be made available to the complainant under cover of a letter from the Chief Executive indicating that this information may need to be passed to the criminal/independent investigation and advising how any other aspect of the complaint not affected by those investigations will be dealt with under the NHS Complaint Procedure When the independent inquiry or criminal investigation has concluded, consideration of any outstanding part of the original complaint on which action was suspended will recommence A report will be made to the Procurator Fiscal in relation to any death where a complaint has been received about the medical treatment given to a patient Where a complaint is about an incident which may result in a Fatal Accident Inquiry (FAI) being held, the Chief Executive 21 should consider whether it would be appropriate to proceed with investigating the complaint before the FAI is held and, if necessary, seek advice from the Procurator Fiscal s Office. Normally, it is more appropriate to recommence the complaints procedure after the completion of the FAI in order to consider any matters not dealt with by it. 25. Specific Issues for Family Health Service Practitioners Most Family Health Service Practitioners, such as GPs, dentists, opticians and community pharmacists, are not employed by the NHS. They are independent contractors who hold a contract with the NHS to provide services to patients. They are obliged by the terms of service in their contract to have in place and to operate 19 Or in Family Health Services the Senior or Executive or Complaints Partner 20 For further guidance on handling deaths in hospital, refer to NHS MEL 1999(75) 21 Or in Family Health Services the Senior or Executive or Complaints Partner 17

19 a Practice-based complaints procedure, which complies with the Directions issued by the Scottish Executive, for the NHS services that are provided A complaint is normally raised with the Practice, but provided NHS Forth Valley is not involved in the complaint itself, the Complaint Manager can offer advice and support towards resolution of the complaint. The extent of this assistance will be agreed with both parties at the outset Where it appears that a Practice is not operating a complaints procedure, NHS Forth Valley Board should arrange for the facts to be established and appropriate action taken. This may involve reminding the practitioner of their terms of service requirement to operate a Practice complaints procedure, and offering support where appropriate. If a Practice Complaint Procedure does not meet the requirements of the statutory Directions, NHS Forth Valley Board may need to consider whether disciplinary action for breach of terms of service would be appropriate Where, in this procedure, reference is made to certain decisions/actions being taken by, or being the responsibility of, the Chief Executive, this can normally be taken to mean senior partner in the case of independent contractors. If doubt exists regarding the appropriateness of the general advice in this paragraph in any particular instance, the contractor concerned should consult with the Complaint Manager and Medical Director. 26. Wrongly Addressed Complaints Any complaints received which are solely concerned with services provided by another NHS body, or a body outside the NHS, will be acknowledged and passed immediately to the correct body. The acknowledgement letter will inform the complainant of the contact details of the organisation to which the complaint has been passed. 27. Restricted Identity Complaints Concerns and complaints are sometimes made in which complainants identify themselves to the member of staff with whom the matter is raised, but ask for their identity to remain confidential throughout the investigation, i.e. a restricted identity complaint. However, restriction of identity may not always be possible, and the person handling the complaint should make this clear at the outset. For example, where it appears that a criminal offence or professional misconduct may have been committed, pertinent information will have to be passed to the police or other relevant body to investigate The complainant will be notified by the person receiving the complaint if, in his/her opinion, it seems that it may be necessary to pass information to the police or other relevant body In normal circumstances, staff complained against will be informed of the identity of an individual making a complaint against them and therefore, in all cases, any 18

20 decision to restrict the complainant s identity will be subject to NHS Forth Valley being satisfied, on reasonable grounds, that there is a good reason for doing so. 28. Anonymous Complaints Occasionally, anonymous complaints will be received. This is a complaint where the complainant does not wish to identify themselves The general standard to be adopted is that the interests of persons in receipt of a service are paramount. Therefore, as an anonymous complaint may provide early warning of unacceptable or dangerous care, treatment or practice which might otherwise persist, an anonymous complaint will normally be accepted and investigated to the fullest extent possible in the circumstances The nature of an anonymous complaint often means that a full investigation of the circumstances is not possible, with a consequent effect on the ability of NHS Forth Valley to reach a final determination. Where possible, the complainant will be advised of this limitation at the time the anonymous complaint is made (e.g. if the complaint is received by telephone). 29. Performance Monitoring As a minimum, quarterly reports on complaints management performance pertinent to complaints against NHS Forth Valley Board, and CHPs will be prepared by the Complaint Service (or on behalf of that Service) and submitted to NHS Forth Valley Board, pertinent local management teams and to the relevant Clinical Governance Committees. The reports will indicate trends and actions taken in response to complaints received Statistics relating to complaints processed in the NHS Forth Valley Board area, including those against independent contractors, will be submitted by the appropriate organisation in each instance to the NHS Information and Statistics Division (ISD) in the form and frequency desired by ISD Forth Valley NHS Board must publish in its Annual Report a report on patient feedback and complaints handling which explains some of the statistics, expands on lessons learned and the action plans developed. Care must be taken in compiling the complaint report to avoid any possible breaches of patient confidentiality. 30. Publicity NHS Forth Valley Board will ensure that patient feedback and the complaint procedure are appropriately publicised locally in order to ensure patients and visitors are aware of: The right to complain 19

21 Advice about how to access the complaints procedure, and the types of help available from: o Frontline staff o Complaints staff o Advocacy and advice and support services NHS Forth Valley will ensure that patients and their families have access to Health Rights Information Scotland s (HRIS) leaflet Making a compliant about the NHS. The HRIS information will be available in other accessible formats, for example, different languages, Braille, CD ROM, British Sign Language and cassette tape. This and any other necessary local information to enable access will be provided free of charge to any person who makes a request for it. 20