Summary

This post debates the NHS complaints procedure, within the context of The Professional Duty of Candour. I discuss my experiences of the NHS complaints procedure; how clinical teams rarely self-evaluate or reflect on their conduct, during investigations. They seldom take any responsibility when things go wrong with a patient’s care. This makes the NHS complaints process futile for patients, and devoid of any transparency. This post asks how the NHS complaints procedure can work better for patients who are seeking redress to genuine grievances?

The NHS Constitution

‘Everybody has the right to make a complaint about any aspect of NHS care, treatment or service, and this is written into the NHS Constitution on GOV.UK.’[1] The NHS pledges to:

• ensure that when mistakes happen or if you are harmed while receiving health care you receive an appropriate explanation and apology, delivered with sensitivity and recognition of the trauma you have experienced, and know that lessons will be learned to help avoid a similar incident occurring again
• ensure that the organisation learns lessons from complaints and uses these to improve NHS services[2]

The NHS Complaints Procedure

Any patient can send a complaint to an NHS trust, by email or post. Once the NHS trust receives the complaint, a member from the complaints team will send an acknowledgement to the patient, within 2-3 days. This will confirm that the patient’s complaint has been received, and sent to the clinical ‘team manager.’ This is not a clinician. The complaints team will forward the complaint onto the administrative manager of the clinical team. The manager will then contact the patient, to check that they have understood the points that the patient has raised in the complaint.

The team manager will  ‘investigate’ the complaint, by speaking to the medical professionals involved, and looking at the patient records. They will send the patient a formal response within 28 days, which the Chief Executive, (CEO) of the NHS trust signs. The report provides details of the Parliamentary Health Service Ombudsman, (PHSO) who the patient can refer to, if they are unhappy with the response from the NHS trust.

The Duty of Candour

‘The intention of the duty of candour legislation is to ensure that providers are open and transparent with people who use services. It sets out some specific requirements providers must follow when things go wrong, with care and treatment, including providing reasonable support, providing truthful information and an apology when things go wrong.’ It states that, ‘Registered persons must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity.’[3]

Good Medical Practice

Good Medical Practice states that doctors ‘must’;

45 be open and honest with patients if things go wrong. If a patient under your care has suffered harm or distress, you must follow our guidance on Openness and Honesty when things go Wrong; the Professional Duty of Candour, and you should:

a put matters right, if possible

b apologise (apologising does not, of itself, mean that you are admitting legal liability for what’s happened)

c explain fully and promptly what has happened and the likely short-term and long-term effects

d report the incident in line with your organisation’s policy so it can be investigated as appropriate – and lessons can be learnt and patients protected from harm in the future.

46 You must respond promptly, fully and honestly to complaints. [4]

Every health and care professional must be open and honest with patients and people in their care, when something goes wrong with their treatment or care, and causes harm or distress. General Medical Council

The Professional Duty of Candour

The General Medical Councils’ Professional Duty of Candour makes clear that; ‘all healthcare professionals have a duty of candour – a professional responsibility to be honest with patients when things go wrong.’ Healthcare professionals ‘must’

• Tell the person when something has gone wrong
• Apologise to the person
• Offer an appropriate remedy to put things right
• Explain fully the long-term effects of what has happened.[5]

It states that a professional must apologise to the patient; ‘when something goes wrong with their care, and they suffer harm or distress as a result.’ (9)  It instructs that doctors ‘should share all you know and believe to be true about what went wrong, and why. You should explain if anything is still uncertain and you must respond honestly to questions. You should apologise to the patient.’ (12)

Saying Sorry

The Professional Duty of Candour sets out that patients expect to be told three things as part of an apology;

1. What happened
2. What can be done to deal with any harm caused
3. What will be done to prevent someone else being harmed. (14)

It makes clear that ‘apologising to a patient does not mean you are admitting legal liability for what has happened, and that the NHS Resolution advises saying sorry is the right thing to do.’ (15) The Professional Duty of Candour advises against a ‘formulaic approach to apologising, since an apology has value only if it is genuine,’ (17.) It states that when apologising to a patient, you should consider that; ‘patients find it more meaningful if you offer a personalised apology, rather than a general expression of regret about the incident on the organisations behalf.’ (17.d)[6]

The Professional Duty of Candour also encourages a learning culture. ‘When something goes wrong with patient care, it is crucial that it is reported at an early stage, so that lessons can be learnt quickly and patients can be protected from harm in the future.’ (23)[7]

My Experience

Having read the Professional Duty of Candour, I feel short-changed. I have complained to five out of the fifteen NHS trusts that I have been to for my facial pain. My complaints have ranged from consultants stopping my antibiotics when I still had an infection, forcing me to pay for private treatment, to clinicians prematurely discharging me, clinicians not following through on promised actions, and consultants being rude and insulting. I have not once received an apology or any honest explanation of what went wrong. I have not had any of my grievances put right.

What I have received, is a defensive explanation of their view of the situation. This leaves me feeling unheard and more hurt as a result. The NHS trusts swerve key points that I have raised. They use blanket statements like; ‘lessons have been learnt,’ but the NHS trusts never specify what lessons they have learnt. This makes wording of this nature, nothing more than a platitude. All responses that I have received have lacked any self-evaluation from the clinicians involved, or willingness to take any responsibility for the failings that have caused me harm. This has left me to carry the unresolved grievance, alone.

The Worst Response

The shoddiest response that I received, was from an NHS Trust in Scotland. The surgeon, who I saw, had promised to do two scans and see me for a follow-up, but I never heard from him again. I complained to the NHS trust that the surgeon did not give me a follow-up consultation and closed my case, with no explanation. He had referred me to Pain Management. They had refused to see me, because I was not ‘suitable’ for their service. I received no answers from the NHS trust about the surgeon’s decisions. The NHS trust just advised in their response, that I ‘go to pain management,’ when they knew full well that Pain Management had refused to see me. They led me down a dead end, which they knew was a dead end. This behaviour is quite the opposite to being ‘open’ and ‘honest.’

The Ombudsman’s report found the physical harm patients suffer following mistakes is often “made worse” by “inadequate, defensive and insensitive responses” from NHS Trusts. [8]

What Patients Want

Patients want hearing and validating. They want answers about what has gone wrong. They want an apology, and they want the issue putting right. All I have wanted is an honest explanation about why has gone wrong with my care, and for the NHS trusts to remedy it. I have not received this, so I have stopped raising complaints. There is no point. I just come up against a brick wall, every time that I try to get answers.

Conclusion

The responses to my complaints have not complied with The Professional Duty of Candour. Clinician’s failings have caused me genuine harm, which they have not acknowledged, or put right. This begs the question – what is the use of having an NHS complaints procedure, if ‘investigators’ just defend clinician’s mistakes? How can medical teams ‘learn lessons,’ from failings in care, if they are not honest about their mistakes, and do not evaluate themselves candidly?

To ensure that medical teams adhere to The Professional Duty of Candour, professionals need to listen to patients more openly, and learn to say sorry. Apologising is not an admission of legal liability. It is an avenue for redressing grievances, improving services, and preventing further harm. Abdicating from taking responsibility for their failings does not serve the medical professionals either. Rigorous self-scrutiny should be at the top of the agenda for self-regulating doctors. Without this, clinicians cannot develop professionally, and will repeat the same mistakes, causing more harm to future patients.

The Ombudsman’s report pointed to “confirmed failures to accept mistakes” and the failure of some NHS trusts to “take accountability” for turning lessons into actions.

Jane Kirby, The Standard.

Foot Notes

[1] https://www.nhs.uk/contact-us/how-to-complain-to-the-nhs/

[2] Department of Health and Social Care, GOV.UK; Guidance NHS Constitution for England, March, 2012

[3] Guidance Duty of Candour GOV.UK October, 2020

[4]General Medical Council; Good Medical Practice, 2024. © 2023 General Medical Council.

[5] General Medical Council; Openness and Honesty when Things go Wrong: The Professional Duty of Candour, ©2015 General Medical Council. Note; This is joint guidance with the Nursing and Midwifery Council, (NMC.)

[6] General Medical Council; Openness and Honesty when Things go Wrong: The Professional Duty of Candour, ©2015 General Medical Council. Note; This is joint guidance with the Nursing and Midwifery Council (NMC.)

[7] Extract from same source as foot note 5 & 6.

[8] Kirby Jane; Ombudsman Finds “Culture of Cover-Up” in NHS When Patients Are Harmed, The Independent, June, 2023.

Photo Credits; Matthias Zomer, Shvets Production, Alex Green, Trung Nguyen, Ann H and Antoni Shkraba on Pexels. Doctor, Tim Mossholder, Randy Laybourne, Nicolas J Leclercq and Nick Fewings on Unsplash.