Independence of the Independent Review Body for health complaints Part 2

Summary

The request sought details on consultations regarding NHS Regulations 2004, public consultation intentions, and specific information about a complaints training program initiated in December 2020. The authority responded that not all information was held, providing instead a generic medico-legal guide on the NHS complaints procedure in England rather than Isle of Man-specific documents.

Key Facts

• Minister Ashford stated the Department of Health and Social Care cannot instruct or influence the Independent Review Body (IRB).
• The IRB is described as totally independent from the Department of Health and Social Care, except for funding.
• The IRB explicitly states in their public leaflet that they are not part of the Government or the Isle of Man NHS.
• The response provided a guide based on the NHS complaints procedure introduced in England on 1 April 2009.
• The outcome was classified as 'Some information sent but not all held'.

Data Disclosed

• 15th December 2020
• 9th December 2020
• 1 April 2009
• NHS Regulations 2004
• Freedom of Information Act 2000
• 16 years old
• three working days
• one working day
• 48 pages
• 4 documents

Original Request

Minister Ashford advised Tynwald on 15th December 2020 that DHSC do not have the ability to either instruct nor influence the Independent Review Body ('IRB'). The Minister also indicated that IRB had total independence from DHSC other than the financial commitment by DHSC to fund the IRB. The IRB go further in their leaflet to the public: 'We are not part of Government or the Isle of Man NHS. ' Continued from Part 1 (FOI 1606781). Question 4: In addition, it is understood that the transformation team have held consultations with the Independent Review Bodies and those involved with the complaints process in relation to the NHS Regulations 2004. Please can you provide a copy of these consultations? Question 5: Please can you also advise if the intention of DHSC to consult the public in relation to the aforementioned regulations? Question 6: Minister Ashford also indicated that training in relation to the complaints process had commenced on 9th December 2020. Please advise who is running the training program, their qualifications, cost of training and which staff are receiving the training? Please also provide a copy of the training manuals.

Data Tables (1)

Full Response Text

Medico-legal guide to   The NHS complaints procedure   Introduction   1.1 The NHS and social care complaints procedure was introduced in England on 1 April 2009. The local resolution stage of the procedure is governed by the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009. Responsible bodies The complaints procedure applies to NHS bodies and all providers of NHS healthcare (including commissioning bodies and primary care providers). It also applies to ‘independent providers’, that is voluntary and independent sector organisations providing ‘healthcare in England under arrangements made with an NHS body’, and to local authority adult social services. These are all identified as ‘responsible bodies’ in the regulations. The complaints procedure has
two stages Stage 1 Local resolution – for example, within the GP practice or hospital. In the MDU’s experience most complaints are resolved quickly and efficiently this way (see Medico-legal Guide 1.2 – Local resolution.) Stage 2 Parliamentary and Health Service Ombudsman – a complainant who remains dissatisfied after stage one may complain to the Ombudsman. Doctors who are being complained about can also take the case to the Ombudsman, for example if they are not satisfied with a response provided on their behalf by a commissioning body (see Medico-legal Guide 1.4 – Parliamentary and Health Service Ombudsman). Complaints do not need to be made to the provider Complaints can be made to the organisation providing care (for example hospital or GP surgery) or direct to the commissioning body. In the latter case,
the commissioning body will consider if it can deal with the complaint, or if it would be more appropriate to pass it to the provider for a response. In both circumstances, the body must seek the complainant’s consent before it passes the details of the complaint to the provider. Complainants must choose at the outset whether to make their complaint to a primary care provider or the commissioning body. If the complaint is made to a GP or practice but the complainant is unhappy with the response, the procedure does not allow them to refer it to the commissioning body for review. If they want to pursue the complaint further, they can refer it to the Ombudsman. If a responsible body receives a complaint that it considers should have been made to a different body, it can send the complaint to the other body for a response. The other body can handle the complaint as though it had received it first. It must acknowledge the complaint within three working days. Introduction 1.1 Complaints excluded from
the procedure • Complaints made by one NHS body against another. • Complaints made by employees in relation to their work for an NHS body. • Oral complaints that were resolved to the complainant’s satisfaction within one working day. • Complaints about the same subject matter as a complaint that has previously been made and resolved. • Complaints alleging failure by a public body to comply with a request for information under the Freedom of Information Act 2000. • Complaints about care solely provided by the independent healthcare sector, which has its own procedures. If a responsible body considers that it is not required to consider a complaint, it must inform the complainant in writing
of the decision and the reasons for it. The complainant Complainants should normally be current or former patients or their nominated representatives, such as a solicitor or the patient’s elected representative, for example an MP. Patients over the age
of 16 whose mental capacity is unimpaired should normally complain themselves. Children under the age of
16 who are able to do so may also make their own complaint. The investigation of a complaint does
not remove the need to respect a patient’s right to confidentiality. If someone other than the patient makes a complaint, you will need to make sure they have authority to do so. If patients lack capacity to make decisions for themselves, the representative must be able to demonstrate sufficient interest in the patient’s welfare and be an appropriate person to act on their behalf. This could be a partner, relative or someone appointed under the Mental Capacity
Act 2005 with lasting power of attorney.
If the power of attorney covers the patient’s welfare, this could include making complaints at a time when he
or she lacks capacity. Appropriate person In certain circumstances, the regulations require the responsible body to satisfy itself that a representative is an appropriate person to make a complaint. For example, if the complaint is about a child, the responsible body must satisfy itself that there are reasonable grounds for the representative to make the complaint, and not the child concerned. If the patient is a child or a patient who lacks capacity, the responsible body must also be satisfied that the representative is acting in the best interests of the person on whose behalf the complaint is made. If the responsible body is not satisfied
that the representative is appropriate, it must not consider the complaint, giving the representative reasons for the decision in writing. Time limits A complaint must be made within 12 months from the date on which the matter occurred, or from when the complainant first knew about the matter. The regulations state that a responsible body should consider a complaint made outside that time limit if the complainant has good reason for doing so and, despite the delay, it is still possible to investigate the complaint fairly and effectively. The MDU generally advises members to consider complaints made outside the time limit if it is possible to investigate them. If there are any difficulties, for example if relevant information is no longer available, you may wish to discuss this with the complainant as soon as possible so they know what steps, if any, can reasonably be taken to investigate their complaint. Your response to a complaint must be timely and appropriate. Although the regulations do not set timescales for the procedure itself, they do state that if a response is not provided within six Introduction 1.1 months from the date of the complaint, or a later date agreed with the complainant, the complaints manager has to write to the complainant to explain the delay. The complaints manager must ensure the complainant receives a response as soon as possible. Saying sorry In the MDU’s experience patients who complain often want one or more of
the following: • a thorough investigation and explanation of what happened
and why • assurance it won’t happen again • an apology – a sincere expression
of regret. This is acknowledged in the GMCs’ guidance in paragraph 31 of Good Medical Practice: ‘Patients who complain about the care or treatment they have received have a right to expect a prompt, open, constructive and honest response including an explanation and, if appropriate, an apology. You must not allow a patient’s complaint to affect adversely the care or treatment you provide or arrange.’ The MDU advises members to apologise where appropriate. If something goes wrong, patients should receive a prompt, open, sympathetic and above all truthful account of what has happened. Any patient who has had the misfortune to suffer through an error of whatever nature should receive a full explanation and a genuine apology. We encourage members to adopt this approach. There are no legal concerns about apologising: it is quite different from admitting liability. Disciplinary and criminal procedures The complaints procedure is a means for addressing patient complaints, not disciplining healthcare professionals. But, inevitably, some complaints will identify matters that suggest a need for disciplinary investigation, either locally or at the GMC or other regulatory body. Where disciplinary action is contemplated against a doctor who is the subject of a complaint, the complaints and disciplinary processes should be treated entirely separately. Disciplinary procedures are confidential between an employer and employee, or a contracting body and a contractor, and complainants have no
right to know the details or the outcome of such procedures. It may be possible for investigation of the complaint to continue at the same time as the disciplinary investigation, but if there is any question that the rights of the doctor under investigation may be prejudiced, please seek advice from the MDU. In very rare cases a complaint might relate to a matter under police investigation. Given that investigation of the complaint might prejudice the police investigation and possibly the rights of the doctor, members are advised to contact the
MDU for advice. Negligence claims The complaint process should be fully concluded even if the complainant indicates they intend to claim for clinical negligence. It is possible that the full response to the complaint will help the complainant and their legal adviser decide if there has been negligence or not. Please contact the MDU if you are informed of a claim at the same time as you are involved in an investigation of
a complaint. How the MDU can help? The MDU has extensive experience of assisting members with complaints. We can help with both stages of the complaints procedure, from drafting an initial response to supporting you if the complaint is referred to the Ombudsman. As always, if you need our assistance, please call the MDU’s 24-hour advisory helpline to speak to one of our medico- legal advisers. Principles of Good Complaint Handling The Parliamentary and Health Service Ombudsman’s booklet Principles of Good Complaint Handling (November 2008, updated February 2009) sets out six key principles that the Ombudsman considers are central to good complaints handling. The Ombudsman expects to see these principles applied to complaints handling by all public bodies, including NHS bodies and organisations providing NHS services. The Ombudsman makes it clear that the principles in the booklet set out the approach the Ombudsman’s office will take when considering complaints referred to it. Much of the Ombudsman’s advice about complaints handling is similar to the advice the MDU has given to members over the years, including in this series
of leaflets. The principles are: 1. Getting it right. 2. Being customer focused. 3. Being open and accountable. 4. Acting fairly and proportionately. 5. Putting things right. 6. Seeking continuous improvement. If you are responding to a complaint,
you may wish to look at the Ombudsman’s booklet in conjunction with the MDU’s guidance. It can be found in the publications section at ombudsman.org.uk MDU Services Limited (MDUSL) is authorised and regulated by the Financial Conduct Authority for insurance mediation and consumer credit activities only. MDUSL is an agent for The Medical Defence Union Limited (MDU). MDU is not an insurance company. The benefits of MDU membership are all discretionary and are subject to the Memorandum and Articles of Association. MDU Services Limited, registered in England 3957086. Registered Office: One Canada Square, London E14 5GS © 2016 ADV201-a-1612 - Complaints 1.1 For individual medico-legal advice: 24-hour advisory helpline
T 0800 716 646 E advisory@themdu.com W themdu.com Medico-legal guide to   The NHS complaints procedure   Stage one - local resolution   1.2 Local resolution is governed by the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009. This guidance applies to England. There are some differences in the way the NHS complaints procedure operates elsewhere in the UK. Separate guides are available for Scotland, Wales and Northern Ireland. Complaints procedure requirements The regulations require all responsible bodies to make arrangements for dealing with complaints to ensure they are: • dealt with efficiently; and • properly investigated. Responsible bodies must also: • treat complainants with respect
and courtesy; • help complainants understand the complaints procedure, or advise them where they can get help; • respond to the complaint appropriately and within a reasonable time; • tell the complainant the outcome of the investigation into their complaint; and • take action, if necessary, in the light of the outcome of the complaint. Responsible bodies All NHS bodies and organisations must have a well-publicised complaints procedure. This includes, for example, hospital trusts, commissioning bodies, mental health trusts, foundation trusts, primary care providers and independent All responsible bodies must have a complaints manager who is readily accessible to the public. Complaints managers will usually be employed by the responsible body, but that is not always the case. They could, for example, work for another responsible body. The complaints manager will deal with all complaints and may, if authorised, sign
on behalf of the responsible person. Complaints involving more than one organisation Where a complaint relates to care provided by more than one responsible body, for example primary and secondary care, or health and social care organisations, the regulations include a ‘duty to co-operate’. Responsible bodies are required to work together, which
may include providing information to
each other as appropriate, and attending joint meetings. Together, the responsible bodies must provide a single response, agreed by each body as part of the final response. They must also co-ordinate the way in which the response is communicated to the complainant. For practical reasons it may be helpful if the bodies decide between them which one will take the lead in providing the final response and liaising with the complainant. Local investigation and resolution The complaints procedure places great emphasis on resolving complaints as quickly as possible. All complaints must be acknowledged within three working days of receipt. The only exception is providers which have made arrangements to provide services to the NHS. All these bodies are referred to in the regulations as ‘responsible bodies’ and all staff working in them need to understand the procedure and know how to handle and respond to complaints and concerns. When thinking about introducing new services or redesigning existing care pathways, the MDU suggests that complaints management is integrated
into this design. Responsible person In each body or organization, there must be clear leadership and accountability for responding to complaints. Responsible bodies are required to have a ‘responsible person’ who

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