NHS Negligence

Let’s start by putting things into perspective: millions of people receive treatment and care in various NHS organizations every year without any cause for complaint and, more often than not, are reasonably content with the level of service that they receive.

However, as with all significant service providers, let alone the largest in the UK, sometimes things do not quite go to plan and the spectrum of outcomes can obviously range from mild dissatisfaction to profound unhappiness and anger.

While a manifestly angry person might immediately wish to take legal advice with a view from the outset to making a formal claim, others may prefer to take a less provocative approach, at least to begin with at any rate.

Making a complaint

OK, then, where to start?

The two best places to look first are the website of the Hospital/NHS Trust which will (or certainly should) clearly indicate how to contact the relevant person or section (Patient complaints, Director of Services/Administration, that sort of thing), alternatively most staff, particularly reception type staff, at the establishment itself will give you the necessary details or leaflet with complaint process information.

From 1st April 2013, due to NHS constitutional amendments, a complaint should ordinarily be referred to the NHS Commissioning Board or a local Clinical Commissioning Group.

(Incidentally, the NHS of course also encourages the receipt of communications praising or approving the care they have given and the same system is used for this as well – even if ostensibly it is sent to the “complaints person”.)

All hospital have a so-called Patient Advice and Liaison Service (PALS) who provide confidential advice and assistance to patients and their families.

What are you are entitled to expect when making a complaint?

You are entitled to complain.

You are entitled to have your complaint thoroughly and efficiently investigated.

You are entitled to receive a detailed and comprehensive written response, in terminology that you can understand and in a reasonable time.

You are then entitled to complain about the complaint process itself in your case to the Parliamentary and Health Service Ombudsman (at the time of drafting this article, their tel no is 0345 015 4033), an independent body, if you’re not happy with how it was handled.

(and finally) You are entitled to take legal proceedings to the High Court of England and Wales for a “judicial review” of the outcome of the complaint process if you consider that it was unreasonable, illogical, unlawful or otherwise its decision was outside or beyond its powers to make;

(or, of course) You are entitled to take “ordinary” civil proceedings for compensation (damages) for the injury or harm caused by any negligent act or omission of the Trust or its employees.

Time limit for complaining?

As solicitors, we would always advise that dissatisfaction or concern about anything should be expressed, whatever it is, as soon as possible after the event or incident giving rise to the discontent.

It is not different with care or treatment complaints. The NHS would like you to complain within 12 months at the outset but there is no ultimate legal restriction on this. In essence, however, the golden rule has to be to complain as soon as possible.

Doing so is to a patient’s benefit in that events are still more closely in the mind of the complainant and the clinicians involved and can be therefore easier to investigate and more likely to produce a fair and balanced response, even if that response might provide more grounds for further action to be taken. The converse is equally true, the longer that has elapsed, the more likely that it will take longer for the relevant doctors/nurses to be located, statements taken and a response formulated. If memories have faded, the response may be guarded or incomplete and probably delayed.

Of course, there may be perfectly understandable reasons for delaying the complaint: information provoking the dissatisfaction may not have previously come to light, or perhaps the events may have been so traumatic and profound that it had not been emotionally possible to do so sooner. The NHS would be likely to be considered to have acted unfairly and unreasonably not to investigate a complaint in such circumstances.

What do we advise?

Lloyd Green, solicitors, are exactly that: solicitors.

We handle legal claims arising from clinical mistakes and omissions and advise on the relevant law pertaining to these.

Our specialty is therefore the legal claim process.

However, we do not necessarily advise that an aggrieved person should immediately consult a solicitor when unhappy with treatment received. It depends on the nature of the incident or events and also the patient’s own particular feelings about it.

For many people, an internal investigation will often be sufficient, particularly for minor service issues, in respect of which an explanation and apology is what is required.

When the matters complained about are more significant, and/or the harm sustained was more severe or long-lasting, however, it may be that it is preferable to ignore the informal complaint route entirely since otherwise the lapse of time inherent in making a complaint will prejudice a legal case that might have been inevitable anyway

i.e. the law only gives an injured person, or family of a deceased, 3 years to commence legal proceedings for compensation (save in exceptional circumstances than are beyond the scope of this blog).

Since we have frequently known complaint investigations to take over a year, the loss of that period of time can be critical and seriously detrimental to the legal claim process.

In short, it depends on the individual person and the individual circumstances.

One last point, while it is not intended to be necessary in the complaints process, Lloyd Green, Solicitors, will of course always be happy to assist clients with drafting a letter of complaint to the NHS if so requested.

 





 

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