Recommendation 110

Litigation should not prevent investigation of a complaint

Accepted
Actual or intended litigation should not be a barrier to the processing or investigation of a complaint at any level. It may be prudent for parties in actual or potential litigation to agree to a stay of proceedings pending the outcome of the complaint, but the duties of the system to respond to complaints should be regarded as entirely separate from the consideration of litigation.

The NHS Litigation Authority actively promotes openness, transparency and candour and has long advocated that it is appropriate to apologise when things go wrong and to provide a full explanation in response to a concern. The NHS Litigation Authority is clear that providing an apology and an explanation in response to a concern will not affect member’s indemnity cover, irrespective of whether this forms part of the complaints process.

Prior to April 2009, where a complaint was received about which the complainant had indicated in writing that they were intending to take legal proceedings, the complaint was excluded from the NHS complaints arrangements. In 2009, the Department of Health removed this regulation because it considered there should be no direct link between responding to a complaint and consideration of litigation.  In some cases, it will be appropriate for the complaint to be put on hold, but that should be an exception.

The Department of Health will work with Action Against Medical Accidents (AvMA) and NHS England to clarify that a threat of future litigation should not delay the handling of a complaint.

Update

The Department of Health, working closely with Action against Medical Accidents and NHS England published clarification on this in March 2014