Financial Remedy Policy (Complaints Handling)

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1 Financial Remedy Policy (Complaints Handling) NON CLINICAL POLICY ACE 359 Version number: 4 Policy Owner: Lead Director: Complaints Manager Director of Clinical & Corporate Governance Date Approved: November 2014 INDE X Approved By: Review Date: November 2016 Management Executive Committee Target Audience: Senior Managers

2 Care Quality Standard Applicable: Essential Standards for Quality and Safety (Outcome 17) Page no 1. Executive Summary and Introduction 1 2. Purpose 2 3. Scope 2 4. Equality Impact Assessment 2 5. Duties within the Organisation 3 6. Procedure/Process 3 7. Policy Development: 7.1 Consultation and Communication with stakeholders during development 7.2 Approval and Ratification Process Owner and Version control/review processes 8. Dissemination and Implementation process including training 7 9. Library and Archiving Arrangements Monitoring of Compliance and Effectiveness Associated Documents and Policies References and Definitions Appendices: 1. Financial Remedy Guidance 2. Checklist 3. Memo 4. Without Prejudice (Template Letter)

3 1. Executive Summary & Introduction 1.1 On 1 April 2009 the Social Services and National Health Service Complaints (2009) Regulations came into force. The strategies that can be applied to resolve complaints are defined within the Parliamentary and Health Service Ombudsman s (PHSO) document Principles for Remedy 1 together with recommendations made following the Ombudsman s consideration of cases as reported in Remedy in the NHS - Summaries of Recent Cases 2. This policy also reflects on the principles set out in the Local Government Ombudsman s report Remedies, Guidance on Good Practice 6 3 and includes consideration of a financial payment. 1.2 General guidance for NHS bodies with regard to special payments has previously been in circumstances as described within The NHS Finance Manual 4 ; this includes ex-gratia payments. This approach has historically been applied where the complainant has incurred financial loss following the actions or omissions of the NHS body. However, it also makes provision for payments where there has been no financial loss. The guidance also allows for NHS bodies to make ex-gratia payments in discovered cases of maladministration where no complaint has been made, but that such payments should only be considered in exceptional circumstances. 1.3 Where local resolution is unsuccessful complainants now have the opportunity of referring their complaint directly to the PHSO, as the second tier of the complaint investigation process. The PHSO has demonstrated within its recommendations that Trusts and those who provide NHS services under contract should demonstrate good practice in the provision of financial remedies. The PHSO is able to influence this practice, but the punitive actions that may be imposed on Trusts and organisations failing to apply such recommendations are thus far not clear. In addition the 2009 Regulations provide a common process for both health and social care, thus the principles for the payment of financial remedies, already adopted by Local Authorities, needs to be replicated within the NHS to ensure equality and consistency. Anglian Community Enterprise (referred hereafter as the Organisation) is committed to providing a thorough investigation of all complaints in a timely manner whilst ensuring the complainant is satisfied with the response and feels that they have been fairly treated. However, the Organisation accepts that there may be occasions when mistakes will cause additional expense, financial loss, inconvenience or distress for the individual service user and/or their carer. This policy is concerned with the circumstances in which financial remedy may be considered whilst ensuring this does not compromise existing responsibilities to the NHS Litigation Authority in the management of legal claims for compensation under the Clinical Negligence Scheme for Trusts (CNST) or the Risk Pooling Scheme for Trusts (RPST). 1.4 The policy relates to the consideration of financial remedy as a consequence of maladministration or service failures. The policy does not relate to offers of payment to the complainant where a real or potential breach of duty has been revealed during the investigation process as such claims for compensation will be dealt with in conjunction with the NHS Litigation Authority under CNST/RPST. Page 1 of 16

4 Failure to advise complainants to follow this established process could leave the Organisation vulnerable to criticism at a later date. 1.5 Guidance on the circumstances where financial remedy could be applied and the amount that may be considered can be found in Appendix 1 2. Purpose 2.1 The purpose of the policy is to provide a framework for the Organisation when considering a financial remedy to resolve a complaint and the procedures that should be followed in such consideration. The policy also provides guidance on the amount (if any) to be paid. 2.2 This is to ensure: a) A consistent approach in the evaluation of the amount of financial remedy in response to the specific circumstances of each case. b) All complaints are dealt with fairly and effectively and, where appropriate, any financial remedy is offered at an early stage. c) The PHSO is able to evaluate the Organisation consideration of financial remedy, and that any payments made are properly monitored and controlled. 3. Scope 3.1 This policy applies to complaints dealt with at the Local Resolution stage (first stage) of the Organisation s complaints procedure and also to complaints being considered by the PHSO (second stage). N.B. The PHSO has made recommendations to a neighbouring Trust on the payment of a substantive financial remedy in a recent case and guidance is currently awaited from the NHSLA on their view on this. The Organisation has agreed to pay the sum as determined by the PHSO on this occasion but will not regard this as a precedent for future cases. 3.2 Financial remedy may also be considered and applied to an individual pursuing other channels of investigation for example a PALS concern, incident or issues relating to safeguarding adults or children. 3.3 The policy does not apply to matters that are the subject of legal action or an inquest is pending, or where there is knowledge of a proposed claim, pre action disclosure or matters that can be taken to statutory appeal such as eligibility for continuing care. Nor that relate to services where the commissioners of those services are investigating the complaint or are in the process of convening a Panel. 4. Equality Impact Assessment This document has been assessed for equality impact. This policy is applicable to every member of staff within the PCT irrespective of their race, ethnic origin, nationality, gender, culture, religion or belief, sexual orientation, age or disability. Page 2 of 16

5 5. Duties within Organisation Managing Director The Managing Director (MD) is the Board member with overall responsibility for complaints handling and agreeing appropriate remedies including financial remedy. Director of Resources The Director of Resources is responsible for ensuring that the guidance within this policy has been applied appropriately in the consideration of awarding financial remedies to complainants. Director/Assistant Director/Locality Manager Each Director/Assistant Director/Senior Manager is responsible for ensuring that complaints are investigated in a timely manner and by an appropriate person. In addition, they are required to; taking into account the findings and recommendations within the investigation report, consider and agree in collaboration with the Risk and Safety Manager and the Director of Resources; the application of appropriate remedies for both upheld and partially upheld complaints. Complaints Manager The Complaints Manager is responsible for quality assuring the investigation process and investigation reports. In addition, to ensure that a consistent approach is applied to both the investigation of and the consideration/application of remedies (including financial) for upheld and partially upheld complaints. 6. Process/Procedure Definition of Maladministration or Service Failures 6.1 If the Organisation is causing, or has caused, injustice or hardship to the complainant as a consequence of: a) Failure in a service it provides, or b) Failure to provide a service that it is commissioned to provide, or c) Maladministration of a service it provides; which includes an unjustified delay in service provision; failure to follow the Organisation s policies, or statutory regulations or providing inaccurate or misleading advice, bias or unfair discrimination. This can also include an unnecessarily prolonged complaint investigation which has caused acknowledged distress or hardship. If the completed investigation of the concern or complaint concludes that there has been a failure or maladministration in service provision; as defined above, the organisation should consider applying a financial remedy as recommended in the PHSO s Principles of Remedy (see below 6.4), 6.2 Exceptions a) Any indication that clinical negligence contributed to the circumstances which caused the complaint to be made. b) The complainant has not suffered any disadvantage. Page 3 of 16

6 c) If the complainant has been disadvantaged and it has been established that it was not as a consequence of the Organisation s failure but may have been caused either by a third party or as a result of the actions or omissions of the complainant themselves. d) This could include failure to follow clinical advice or non-attendance at hospital appointments. For a remedy to be considered it must be clear, on balance, that any injustice or hardship occurred as a result of the Organisation s actions or non-actions. 6.3 Involving the Complainant In line with the Organisation s complaints policy, the Organisation must seek the view of the complainant at the outset about the remedy he or she is seeking. Sometimes an apology is all that is required or taking some specific action such as arranging an appointment or providing a second opinion. In some cases a financial remedy may be sought. However, while taking account of the complainant s views, the Organisation must come to its own decision on what is a reasonable and proportionate remedy. In some exceptional circumstances this may include providing a financial remedy even though this has not been sought by the claimant. 6.4 General Principles for Remedy The PHSO Principles for Remedy 5 sets out the general principles for remedy. Remedies can include one or more of the following: an apology an explanation correction of error or other remedial action an undertaking to improve procedures or systems changing a decision on service provision training for staff financial recompense The Ombudsman s overriding aim is that the organisation should, as far as possible, put the individual back into the position that s/he would have been in if the maladministration/service failure had not occurred. However, there will be circumstances where this cannot be achieved because of the passage of time or events that have occurred. In such cases, a financial remedy may be appropriate. 6.5 When Financial Remedy will be Considered - appendix 2 Where financial remedy is identified by the Organisation as a potential option for resolving the complaint or this has been sought by the complainant as the right approach to remedy the outcome of a service failure, it should be fair, reasonable and proportionate to the damage suffered. Page 4 of 16

7 Financial remedy may be appropriate if the complainant has suffered as a result of a delay by the Organisation in taking some action; or if there is no other practical action that would provide a full and appropriate remedy; or if the complainant has directly sustained loss or suffering. Financial remedies should not, however, allow recipients to gain a financial advantage compared to what would have happened in the absence of a service failure. Financial remedy needs to take account of all the facts of the case. These include: a) The effects of the complainant s own actions: for example, not attending an appointment. b) Quantifiable loss: costs that would not have been necessary but for the Organisation s maladministration. For example, A patient paying for treatment from elsewhere because of a failure on the part of the service provider. This will need to be assessed with care, on the basis that it was reasonable for the complainant to incur costs and they were as a consequence of the maladministration. It is not appropriate to consider financial remedy when the individual sought treatment from elsewhere under private arrangement merely because they did not wish to wait for NHS treatment. Loss of possessions. In such cases the individual should be reimbursed reasonable replacement value. Copies of receipts must be requested and provided whenever possible. c) Loss of value: for example, loss of or damage to possessions. d) Lost opportunity: for example, the complainant may have lost the opportunity of earlier treatment due to the maladministration of waiting lists. e) Distress: this will include stress, anxiety, inconvenience, frustration, worry and uncertainty. The amount will need to take account of all the circumstances including the severity of the distress, the length of time involved, the vulnerability of the individual and the number of people affected. f) Professional fees: it may sometimes be appropriate to recognise the nature of the complainant s difficulty was such that expenditure on professional fees in pursuing the dispute was justified. For example, paying an advocate because one had not been offered by the Organisation. However, this will need to be assessed with care. The Organisation will need to be satisfied that it was reasonable for the complainant to incur these costs, and that it was a consequence of maladministration. It may sometimes be appropriate to reimburse only part of the expenditure, from the point when the professional advice became appropriate. g) Time and trouble in pursing the complaint: this should only be paid when the time and trouble in pursuing the complaint are more than the minor costs that would routinely be expected. It is not the same as distress caused by the Organisation s actions. In assessing whether payment is appropriate, relevant factors to consider could include; the passage of time in resolving the matter; the effort required from the complainant; the degree of inadequacy of the Organisation s response/s, the Page 5 of 16

8 Page 6 of 16 vulnerability of the individual and whether there has been any element of wilful action of the Organisation as opposed to poor administration. 6.6 Independent Providers/Commissioned Services In the Local Government Ombudsman s Special Report of July 2007, Local Partnerships and Citizen Redress it was recommended that, Where a local authority exercises a function through another body, ensure that the arrangements provide for effective redress by that body (if the authority does not retain this responsibility). These arrangements should also cover responsibility where the authority agrees to an Ombudsman recommendation. Redress may include an apology, financial remedy, staff guidance, procedural changes or service improvements. Independent bodies may provide services on behalf of the Organisation. In these circumstances the Organisation still has responsibility for the service being provided so, in partnership, the Organisation and the body responsible for delivering the service should agree the remedy to be offered. If the provider fails to pay the financial remedy the Organisation should have the right to withhold the amount from any payments due. Careful consideration needs to be made on how this will be written into Service Level Agreements and monitored. If commissioning services, the Organisation should ensure that the wording of contracts provides for remedies of this nature to be paid and the cost covered by the provider. If the provider fails to pay the financial remedy the Organisation should have the right to withhold the amount from any payments due. Careful consideration needs to be made on how this will be written into Service Level Agreements and monitored. 6.7 Joint Liability Where maladministration/service failures involve more than one organisation, agreement should be reached as to how the financial remedy will be apportioned. This may need to take into account the proportionate level of failure by each organisation involved. See Complaints Policy appendix 12 joint working protocol Joint Working Protocol. 6.8 Agreement on Amount of Financial Remedy payable - see appendix 1 Payments of up to 100 will be agreed and approved by the relevant Director/Assistant Director/Senior Manager in consultation with the Quality & Improvement Lead. To ensure consistency and equality in the level of payments made for non-quantifiable loss, any case involving a sum of above 100 should be approved by the budget holder from whose budget the payment will be made. A sum exceeding 500 must be approved by the Managing Director and the Director of Resources in line with the Organisation s Scheme of Delegation. To ensure consistency and equality, national guidance and local and national precedence will be taken into account and records of each decision, with reasons, will be documented on the Organisation s Risk Management Software (DATIX), by the Patient Experience Team and a separate record kept manually.

9 6.9 Making an Offer of Financial Remedy When an offer of financial remedy is made it should include the words without prejudice at the top of the first page. Any offer should always be in full and final settlement of any claim against the Organisation and represents closure of the complaint investigation. This means that, if the offer is accepted, the complaint is effectively closed. Confirmation of acceptance of the offer should be obtained in writing before payment is made. N.B. The offer and acceptance of financial remedy will not obviate the possibility of the complainant subsequently making a legal claim. 7. Policy Development 7.1 Consultation and Communication with Stakeholders during Development This policy has been developed in consultation with the following groups: Director of Clinical & Corporate Governance Director of Resources Assistant Director of Corporate Governance Clinical and Corporate Governance Team 7.2 Approval and Ratification Process Following consultation, the approval and ratification of the policy will be via the Quality, Safety and Assurance Group. 7.3 Owner and Version Control/Review Processes This policy will be reviewed by the policy owner at least annually from date of ratification. Amendments may be made to the policy at earlier intervals to take account of new local or national guidance/legal or governmental changes. Versions will be controlled by identifying each change as it occurs, be it annual or earlier. 8. Dissemination and Implementation Process including Training The Complaints Manager is responsible for ensuring that all employees are equipped with sufficient knowledge of complaints handling to empower them to act decisively and appropriately in resolving complaints and applying financial remedy in appropriate cases. Templates have been designed and are available to support staff in dealing with financial remedy and are attached as appendices to this policy. All members of staff have a responsibility to apprise themselves of the content of this Policy and the Complaints Policy and Procedural Guidelines. 9. Library and Archiving Arrangements Once an out of date policy has been removed from the extranet, the policy will be stored in an electronic archive file. This will be maintained by the Clinical and Corporate Governance Team. Page 7 of 16

10 10. Monitoring of Compliance and Effectiveness Compliance with this policy and procedure will be monitored through: Inclusion in the Management Executive Committee reports. Ensuring procedures for remedies, including financial remedy are included within Complaints Management Training Authorisation of Payments A record of any financial remedy paid must be recorded in the complaint/incident file. All payments will be made using an appropriate cost code for the department where the maladministration/service failure occurred and authorised by the relevant Director and/or Senior Manager as appropriate in accordance with Standing Financial Instructions and the Organisation s Scheme of Delegation. A loss and compensations form will be completed and signed off by the relevant Director or Senior Manager as appropriate. Attached to the losses and compensations form will be all relevant documentation which can include receipts, copy of complaint, copy of letter offering payment and complainant s written agreement to accepting the same. The Complaints Manager will be responsible for maintaining information on the details of financial remedy paid and this information will be included in the quarterly reports. The record will detail the reason why the financial remedy has been paid and how the amount has been assessed and agreed. Page 8 of 16

11 11. Associated Documents and Polices Title Complaints Policy ACE154 *Incident Reporting and Management Policy ACE133 Grievance Policy HRa11 ACE Risk Management Strategy Policy ACE288 Being Open About Patient Safety Incidents Policy ACE140 Legal Framework and Procedures ACE126 * Losses and Compensation Policy ACE PHSO Principles for Remedy 2 PHSO Remedy in the NHS - Summaries of Recent Cases 3 LGO Remedies 4 NHS Finance Manual 5 PHSO Principles for Remedy 6 LGO Special Report of July 2007, Local Partnerships and Citizen Redress 7 LGO s report Remedies Guidance on Good Practice 6 8 PHSO Summaries of Recent Cases, June 2008, Page 9 of 16

12 12. References and Definitions Title of Document The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 Principles of Good Administration Principles for Remedy Principles of Good Complaints Handling Appendix 13 Body/Version National Health Service, England (February 2009) Parliamentary and Health Service Ombudsman (February 2009) Parliamentary and Health Service Ombudsman (February 2009) Parliamentary and Health Service Ombudsman (February 2009) Listening, Responding, Improving A Guide to Better Customer Care Department of Health (February 2009) Investigating Complaints Department of Health (February 2009) Joint Working on Complaints An Example Protocol Appendix 12 Complaints Policy NHS Constitution 01 January 2010 National Health Services (January 2009) Page 10 of 16

13 APPENDIX 1 FINANCIAL REMEDY - GUIDANCE Re: Amounts to be considered when deciding on financial remedy for Non Quantifiable Loss. These amounts are for guidance only and are based on national guidance and precedent: Local Government Ombudsman s report Remedies, Guidance on Good Practice 6. (LGO report) Parliamentary and Health Service Ombudsman, Remedy in the NHS - Summaries of Recent Cases. (PHSO Report) The table below is for guidance only and consideration will need to be given to issues involving costs or financial/property losses incurred by the complainant. N.B These payments will only apply where failure of services or maladministration has been proven. Where the actions of the complainant are shown to be a significant contributory factor, no payment will be made. CIRCUMSTANCES AMOUNT REFERENCE Moderate time and trouble Based on LGO report. P51 Para 5 Considerable time and trouble Up to 250 Unhelpful, negative and defensive 250 PHSO Page 38 response to complainant e.g with threat of counterclaim, lack of apology etc. Disregard for procedures and good practice Exceptional time and trouble. For Up to 500 Based on LGO report. P50 Para 40 example, where the investigation and review of a complaint has taken many months in excess of the relevant timescale agreed with the complainant and the complainant has been put to considerable inconvenience in pursuing a complaint. Delay in complaint handling and failure of the Organisation to adequately respond to recommendations made by the Ombudsman or Care Quality Commissions 500 PHSO page 34 Page 11

14 Appendix 2 Checklist - (Used to assess whether financial remedy is appropriate) Circumstances Apply financial remedy 1) The investigation has revealed evidence of failings in medical/nursing care that has led to a poor outcome for the patient 2) Following completion of the complaint investigation the patient/representative is requesting compensation for alleged failing in care 3) The investigation has revealed staff failed to follow Trust policy which led to administrative failings which caused exception time and trouble, for example, where a referral for tests was not progressed delaying to health (nonquantifiable loss) or poorly managed discharge leading to financial loss for the patient (quantifiable loss) Yes See guidance on amounts No The individual should be guided to CNST procedures The individual should be guided to CNST procedures 4) The investigation and review of a complaints has taken many months in excess of the timescale agreed with the complainant and the complainant has been put to considerable inconvenience in pursuing a conclusion. See guidance on amounts 5) There has been an unhelpful, negative or defensive response to the complaint from staff involved in the concern raised e.g. failure to identify and address shortcoming in care, lack of apology etc. This has led to considerable inconvenience for the complainant in pursuing a conclusion 6) The Parliamentary Health Service Ombudsman has recommended a financial remedy be applied See guidance on amount The decision and the amount needs to be considered in line with the above rationale. NB. Small amounts requested for reimbursement for lost personal property such as dentures, spectacles and clothing should continue to be managed on a local level by ward and departments and in accordance with the Organisation s Losses and Compensation Policy. Page 12

15 Appendix 3 Memo For the consideration of a financial remedy within complaints resolution. Date: TO: FROM: RE: Managing Director Director of Resources Director and/or Assistant Director/Senior Manager (Insert description of Directorate) Complaints Manager Patient name: Complainant name (relationship): Complaint Ref No: Directorate: Ward/Department: An investigation into this complaint has been carried out by (Insert name) under the direction of the Complaints Manager and a final response has been drafted on behalf of the Managing Director. A copy of the draft response is attached. The investigation has concluded that a financial remedy should be considered on the basis of the circumstances identified overleaf. This outcome has been discussed with (Insert name(s)) Director and/or Assistant Director/Senior Manager and a preliminary sum of (Insert Sum) is agreed as an appropriate remedy in accordance with the Complaints and Financial Remedy Policies. Your consideration of this proposal is requested and a decision is required as soon as possible to prevent any additional, avoidable distress and delay for the complainant. With thanks Please complete the authorisation below and return: I agree / I disagree that the figure of for financial remedy sum should be offered in line with the findings of the complaint investigation and in accordance with arrangements defined within the Complaints and Financial Remedy Policies. Signed: (Insert name of either the MD or nominated deputy) Copies to: 1. Complaint file 2. Quality Improvement Lead 3. Risk and Safety Manager 4. Budget Holder/Senior Manager to accompany cheque request/authorisation Page 13

16 APPENDIX 4 (Wording to complainant: either to be inserted into final response or sent as separate correspondence) Without Prejudice Ref: Address Dear The investigation into your concerns has now been completed and a response to the issues you highlighted has been provided. This process has found that you experienced (SAMPLE WORDING - considerable and unnecessary inconvenience/financial loss/exceptional delays) due to (exceptional administrative delay/failure of staff to follow trust procedure or policy). Consideration has been given to this finding by (Insert name of MD) and a decision has been made to offer you (Insert sum), in line with the Principles of Remedy endorsed by the Parliamentary Health Service Ombudsman. I hope that this will be an acceptable conclusion for you to this investigation and, if acceptable to you, will represent the Trust s closure of the complaint investigation. The amount is not negotiable. Please complete the following information if you wish to accept this proposal. I accept the sum of (Insert sum) in full and final settlement of this matter and understand that it represents closure of the complaint investigation. Signed: Dated: Please return a copy of this letter to the Patient Experience Team at the address above and retain a copy for your personal records. Arrangements will then be made for a cheque to be sent to you. This may take some weeks to complete. You may wish to take independent advice to assist in your decision and you do of course retain the right to contact the Offices of the Parliamentary Health Service Ombudsman (as outlined in earlier correspondence/as described below). Finally, I wish to reiterate (Insert name of MD) sincere apologies for the difficulties you have experienced. Yours sincerely Complaints Manager Page 14

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