Recommendation 115

Arm’s length independent investigation of a complaint

Accepted in part

Arms length independent investigation of a complaint should be initiated by the provider trust where any one of the following apply:

  • A complaint amounts to an allegation of a serious untoward incident;
  • Subject matter involving clinically related issues is not capable of resolution without an expert clinical opinion;
  • A complaint raises substantive issues of professional misconduct or the performance of senior managers.
  • A complaint involves issues about the nature and extent of the services commissioned.

Investigation of any complaints should be proportionate to the needs of the individual case. This follows the fundamental principle that complaints cases should be handled according to the needs of that individual case. In serious or complex complaints, the investigator may often be expected to be from outside the organisation being complained about.

Where a serious incident is alleged via a complaint, it must be treated as a serious incident identified through any other means until the incident has been investigated, responded to and closed or the investigation reveals the allegation is not supported by the evidence. Investigation of incidents by fully independent teams from outside an organisation are extremely useful for ensuring that the lessons from an incident are identified, learned and relevant actions initiated to prevent recurrence, particularly in the case of very complex, sensitive or wide-ranging serious incidents. It is an important principle, however, that serious incident investigations should be proportionate to the severity of the incident in question, given the resources involved in a full independent investigation and the length of time they can take.

NHS England has published a Serious Incident Framework, which sets out the various types of investigation that must be undertaken following a serious incident. This makes clear that the level of investigation required following a serious incident will vary according to the severity of the incident. The need for independent investigation must be determined in conjunction with the relevant commissioner. Investigations for less severe serious incidents can be undertaken by organisations themselves provided the staff undertaking the investigation are sufficiently removed from the incident to be able to provide an objective view and that there is no conflict of interest, real or perceived.

Regarding the need for an expert clinical opinion, the Review of the Handling of Complaints in NHS Hospitals raises the issue of a need for a greater degree of independence at local level, and makes a recommendation that supports this general approach:

  • when Trusts have a conversation with patients at the start of the complaints process on a serious failing in care they should immediately offer truly independent clinical and lay advice… to the complainant.

However, we consider there to be an important distinction between an independent investigation and an expert clinical opinion. An independent investigation seeks to determine the facts of the case. They will seek the views of an expert clinician, where appropriate. Independent investigation should be determined on the nature of the complaint, with serious failings in particular warranting independent investigation.

Similarly, we do not consider it appropriate for independent investigation to take place in all cases. The complaints manager in each trust should be sufficiently senior and competent to be able to judge effectively when a complaint merits independent advice or investigation.

Depending on the nature of a complaint, fully independent investigation of the serious incident by an external team may be appropriate. However in some cases, particularly where it is not clear that a serious incident has occurred, it is appropriate, particularly in the initial phase, for an organisation to undertake its own investigation using staff sufficiently removed from the incident with no conflict of interest, until such a time as the facts require an independent investigation to be commissioned. The current NHS England Serious Incident Framework is a working draft and will therefore be updated and clarified in relation to this recommendation.

If the person making the complaint is not satisfied with the outcome at this local resolution stage, they have the right to ask the Health Service Ombudsman to investigate the case. The Ombudsman is independent of government and the NHS, accountable to Parliament. The government welcomes the commitment of the Ombudsman to expand the number of cases she considers.

The government wants to see every trust make clear to every patient from their first encounter with the hospital:

  • how they can complain to the hospital when things go wrong
  • who they can turn to for independent local support if they want it, and where to contact them
  • that they have the right to go to the Ombudsman if they remain dissatisfied, and how to contact them; and
  • details of how to contact their local Healthwatch.

A sign in every ward and clinical setting would be a simple means of achieving this and the Department of Health will be discussing with Healthwatch England, the Care Quality Commission and NHS England the best means of ensuring this becomes standard practice in all NHS hospitals in England. We would expect these posters to set out how to complain about hospital, how to seek support from their local Healthwatch and how to refer their complaint to the Ombudsman.

Update

The Department of Health agrees there needs to be communication to the NHS, and Board level management, emphasising the importance of learning from mistakes, showing evidence of improvement and Board directors considering complaints regularly.

Monitor is in the process of working to further align the well-led framework with the Care Quality Commission’s new inspection regime. The current well-led framework was published in May 2014 and includes a number of references to how Boards should use complaints in reviewing their governance arrangements. The framework will be used by NHS Trusts, Foundation Trusts, Monitor, NHS Trust Development Authority and the Care Quality Commission to ensure consistent standards across the system of how well-led NHS organisations are.

Sir Mike Richard’s thematic complaints report Complaints Matter was published in December 2014. It covers acute inspections, primary care, and social care and identifies trends and themes in complaints handling drawn from the inspections done by the Care Quality Commission.