Can I Help You? Guidance for handling and learning from feedback, comments, concerns or complaints about NHS health care services.

Part 4 - Information that may be useful in dealing with feedback, comments, concerns and complaints

4.1 This section provides information on related policies, procedures, legislation etc which may impact on the handling of a complaint. It is intended to be a guide to some of the issues on which relevant NHS bodies and their health service providers should have local policies. It is not meant to be all-embracing or to cover every contingency, and the general advice it offers is purely advisory. Relevant NHS bodies and health service providers remain responsible for ensuring the appropriateness of their actions and for their local interpretation of related legislation. They are encouraged, within the scope of the Patient Rights (Scotland) Act 2011, Regulations and Directions, to develop local initiatives and training in a way that ensures the management and operation of the procedure to meet local circumstances.

4.2 Advocacy

4.2.1 Advocacy aims to help people by supporting them to gain access to information, explore and understand their options, express their own needs and make informed choices. It empowers people who need a stronger voice by enabling them to express their own needs and make their own decisions. Advocacy is an important way of supporting and protecting vulnerable people and is a key element of delivering a patient centred NHS.

4.2.2 Under the Mental Health (Care and Treatment) (Scotland) Act 2003²⁹ every person with a mental disorder has a right of access to independent advocacy. The Act places a duty on each local authority, in collaboration with the (or each) relevant Health Board to secure the availability, to persons in its area who have a mental disorder, of independent advocacy services.

4.2.3 In the handling of feedback, comments, concerns and complaints, NHS staff and their health service providers should be aware of what is available for patients in terms of advocacy services and the arrangements within their respective areas for requesting the provision of independent advocacy services for individuals who need advocacy support.

4.2.4 The Scottish Independent Advocacy Alliance³⁰ (SIAA), promotes, supports and defends the principles and practice of independent advocacy across Scotland. The SIAA website provides guidance and information on advocacy.

4.3 Confidentiality of Patient Information

4.3.1 In establishing arrangements for handling and responding to patient feedback, comments, concerns or complaints in accordance with the Patient Rights (Scotland) Act 2011 and supporting legislation, relevant NHS bodies and their health service providers must act in accordance with their obligations under Article 8 of the ECHR, confidentiality laws, and any other law such as the Data Protection Act 1998. NHS staff and staff of their health service providers should be aware of the requirements of the Data Protection Act 1998³¹ , the contents of NHSScotland Caldicott Guardians - Principles into Practice'³² , and of HDL (2003)37 on 'The Use of Personal Health Information'³³ , the NHS Code of Practice on Confidentiality and any relevant provisions in their local staff code of conduct. Staff should also be aware of the 2011Information Commissioner's Office publication Access to information held in complaint files³⁴ which helps to clarify issues of data protection and freedom of information.

4.4 Obtaining Express Consent to Use Information in Health Records

4.4.1 Where a patient makes a complaint that relates to a clinical matter, they should be informed that information from their health records may need to be disclosed to those handling the complaint, but this information will only be shared on a need-to-know basis. All complaints leaflets must contain this information and a leaflet should always be sent to the patient when acknowledging receipt of the complaint. If the patient objects to this, they should be advised that refusal to allow information sharing could affect the ability to fully investigate a complaint.

4.4.2 Deceased Patients

4.4.2.1 In the case of a deceased patient, the Access to Health Records Act (1990)³⁵ applies and the patient's personal health information can be disclosed to the patient's representative and 'any person who may have a claim arising out of the patient's death'.

4.4.2.2 However, doctors are also bound by GMC guidance, which states that they still have an obligation to keep personal information confidential after a patient dies. The extent to which confidential information may be disclosed after a patient's death will depend on the circumstances. These include the nature of the information, whether that information is already public knowledge or can be anonymised, and the intended use to which the information will be put. You should also consider whether the disclosure of information may cause distress to, or be of benefit to, the patient's partner or family.

4.4.2..3 The NHS complaints procedure may also be used to investigate a complaint about any aspect of an application to obtain access to the health records of deceased persons under the Access to Health Records Act (1990). This does not affect the patient's representative's right to take the matter to a court if they remain dissatisfied with the outcome of an investigation.

4.4.3 Pre 1991 records

4.4.3.1 Access to records compiled before November 1991 is at the discretion of the record holder, having regard to the fact that such records were not compiled in the expectation that they would be disclosed to the patient. For records complied after November 1991 it remains the responsibility of the record holder to decide whether access should be granted. Decisions to withhold information should be taken by the Chief Executive.

4.4.4 Reporting

4.4.4.1 Care must be taken in reporting the outcome of a complaints investigation about access to health records to ensure that the complainant does not obtain information to which he/she would not be entitled under the Access to Health Records Act (1990). This is particularly important in the following circumstances:

• where access was denied on the grounds that it might cause serious damage to the physical or mental health of the patient's representative or another individual ; and
• where the information relates to, or was provided by a third party who could be identified from the information and who has not consented to its disclosure

4.4.5 Third Party Information

4.4.5.1 Third party information must not be disclosed unless the person who has provided that information, or about whom information is held, has expressly consented to its disclosure. This also applies where the information would enable the third person to be identified as the source of the information.

4.4.5.2 The duty of confidentiality applies equally to third parties who have given information or who are referred to in the patient's records, unless they are health professionals who either contributed to the record or were involved in the care of the patient. The Data Protection Act (1998) sets out only 2 circumstances in which information relating to a third person can be disclosed:

• where the other individual has consented to the disclosure of this information
• or where it is reasonable in all the circumstances, e.g. an overriding public interest, to comply without the consent of the third person

4.4.5.3 Even if these circumstances apply, only that information which is relevant to the complaint should be considered for disclosure, and then only to those within the NHS who have a demonstrable need to know in connection with the complaint investigation

4.4.6 Use of anonymised information

4.4.6.1 Where anonymised information about patients and/or third parties would suffice, identifiable information must be omitted. Anonymisation does not of itself remove the legal duty of confidence, but, where all reasonable steps are taken to ensure that the recipient is unable to trace the patient/third party identity, it may be passed on where justified by the complaint investigation.

4.5 Consent

4.5.1 Where someone (including MPs, MSPs and local Councillors) other than the patient or their authorised agent wishes to make a complaint on behalf of the patient, it will be for the relevant NHS body or health service provider (as the case may be) to ensure that any such complaint is handled in accordance with their obligations under the ECHR, confidentiality laws and any other law to which they are subject, such as the Data Protection Act 1998. In such circumstances it will, for example, be relevant for the body to check whether consent has been received from the patient for the complaint to be made on their behalf.

4.5.2 In the event that consent has not been received, the relevant NHS body or service provider would have to take this into account when handling and responding to the complaint. In such circumstances the responsible body is likely to be constrained as to what it can do in terms of investigating any such complaint, or it terms of the information which can be included in the report of such an investigation.

4.5.3 In circumstances where the patient does not have the capacity to consent to the complaint being made on his or her behalf, it is likely to be relevant (for example) to check that the person making the complaint on the patient's behalf has a legitimate interest in the patient's welfare and that there is no conflict of interest. It would also be good practice to keep the patient on whose behalf the complaint is being made informed of the progress of any investigation into the complaint, in so far as that is possible and appropriate.

4.5.4 Children and Young People

4.5.4.1 All NHS organisations should have and operate clear policies in relation to obtaining consent where the patient who is the subject of a complaint is a child. These procedures should reflect any guidance or advice that may be issued by the Commissioner for Children and Young People in Scotland. The principles in that guidance will be equally relevant to the local operation of the NHS complaints procedure. A number of patient information leaflets for young people are available on NHS inform including Confidentiality - Your Rights³⁶ .

4.5.4.2 Generally, a person with parental responsibility can pursue a complaint on behalf of a child where the NHS body or health service provider judges that the child does not have sufficient understanding of what is involved. While in these circumstances, the child's consent is not required, it is considered good practice to explain the process to the child and inform them that information from their health records may need to be disclosed to those investigating the complaint

4.5.4.3 Where an NHS body or health service providerjudges that a child has sufficient maturity and understanding, they can either pursue the complaint themselves or consent to it being pursued on their behalf by a parent or third party of their choice. It is also good practice to obtain the child's written consent to information from their health records being released.

4.5.5 Adults who cannot give consent

4.5.5.1 Where a patient is unable to give consen, the NHS body or health service provider can agree to investigate a complaint made on their behalf by a third party. However, before doing so they should satisfy themselves that the third party has:

• no conflict of interest; and
• a legitimate interest in the patient's welfare, for example if they are a Welfare attorney acting on behalf of an individual covered by the Adults with Incapacity Act (2000)³⁷

4.6 Data Protection Act 1998

4.6.1 Complainants may use the NHS complaints procedure for complaints arising from rights given by the Data Protection Act (1998)³⁸ , and if this route is chosen, complaints staff should take the matter forward in conjunction with the Data Protection Officer or Data Controller (or nominated person who takes decisions on what information is stored and how it is processed) within the NHS body or health service provider. Where a patient remains unhappy with the outcome of local resolution they should be advised to contact the UK Information Commissioner.

4.7 Negligence claims

4.7.1 If a complaint reveals a prima facie case of negligence, or the likelihood of legal action, best practice would be for the complaints officer to inform, and seek advice from those responsible for dealing with risk/claims management. Complaints staff should not infer that the person making the complaint has decided to take formal legal action, even if their initial communication is via a solicitor's letter. This point is particularly important when considering complaints related to patients who receive their healthcare in a prison health centre or from patients with additional support needs where it may be commonplace for them to raise a complaint with the support of a solicitor.

4.7.2 In the early part of the complaints process it may not be clear whether the complainant simply wants an explanation and apology, with assurances that any failures in service will be rectified for the future, or whether they are in fact seeking information with litigation in mind. It is important that at this stage all complainants are treated with an open and sympathetic approach. Even prima facie evidence of negligence should not delay a full explanation of events and, if appropriate an apology: an apology need not be an admission of liability.

4.7.3 However, if the complainant indicates in writing an intention to instigate or actually instigates legal proceedings, the complaints procedure should be immediately suspended. In such circumstances, in accordance with the Complaints Regulations, the relevant NHS body or health service provider must write to the complainant as soon as reasonably practical to say that this complaint will not be investigated under the Complaints Procedure. Best practice would be for the Chief Executive of the relevant NHS body to advise the person making the complaint and any person(s) named in the complaint of this decision in writing. All papers relating to the complaint should be passed to the relevant person appointed to deal with such matters and local complaints staff will be able to advise on who this is.

4.7.4 The Scottish Government Health and Social Care Directorates are currently considering the report and recommendations of the No-fault Compensation Review Group established by the Cabinet Secretary for Health and Wellbeing in 2009. The group recommended consideration of a system based on the model in operation in Sweden for medical injuries that occur in Scotland. A consultation to help in the understanding of the practical implications of introducing such a scheme is proposed in 2012.

4.8 Patient Advice and Support Service (PASS)

4.8.1 The requirement to provide a PASS service is outlined in section 17 of the Patient Rights (Scotland) Act 2011. This makes provision for the Common Services Agency (also known as NHS National Services Scotland) to commission an independent Patient Advice and Support Service to provide a national independent and consistent service across Scotland. The geographical NHS Health Boards will contribute to the funding of the service but it is available for everyone who uses NHS Services. Relevant NHS bodies and Primary Care Service Providers should also raise awareness of its availability.

4.8.2 The purpose of the PASS which will commence on 1 April 2012 is to provide free, inclusive and accessible, confidential advice and support to patients and other members of the public in relation to NHSScotland. The service will promote an awareness and understanding of the rights and responsibilities of patients and will advise and support people who wish to give feedback, make comments, raise concerns or make complaints about treatment and care provided. The PASS with work co-operatively with all relevant NHS bodies and health service providers in the provision of their service particularly in relation to the requirements for quarterly and annual reporting, training, support and relationship building.

4.8.3 The PASS will also assist people to deal with other issues that may be impacting on their health and signpost them and raise awareness of the availability of other support services such as advocacy, translation and interpreting services, other communication support and alternative dispute resolution services that may be available.

4.8.4 The PASS framework agreement highlights that relevant NHS bodies and the PASS provider have the following joint responsibilities in relation to the PASS service:

• Cooperate to develop the service locally
• Make available information about the PASS service to patients/staff/service providers through the use of posters, leaflets and other materials in a format appropriate to the audience
• Shared understanding of and joint training in the local feedback, comments, concerns and complaints processes
• Effective information systems in place to facilitate effective data sharing between PASS and the local NHS Health Board

4.8.5 The PASS does NOT

• Provide advocacy (NHS Boards commission independent advocacy from other providers)
• Provide legal or clinical/medical advice on healthcare issues
• Investigate complaints
• Signpost to clinical advice other than to their healthcare provider
• Assist with complaints about private healthcare services except where these have been commissioned by the NHS and are being provided as part of the patients NHS treatment and care
• Support a patient/carer/relative to attend a fatal accident enquiry. Support for patients in these circumstances should be delivered by a qualified legal advisor
• Advocate on behalf of patients to shorten waiting times or seek a clinically advantageous service in comparison to other patients

4.8.6 Further information can be found at www.cas.org.uk/Projects/patientadvice
The provision of the service will be monitored and evaluated by the Scottish Health Council³⁹

4.9 Scottish Public Services Ombudsman

4.9.1 The Ombudsman can investigate complaints from aggrieved persons that have sustained injustice or hardship as a result of maladministration (failure in administrative procedures or processes) or service failure on the part of a listed authority which includes all relevant NHS bodies and Primary Care Service Providers in Scotland. The Ombudsman is also entitled to question the merits of a decision taken by a relevant NHS body without maladministration where that decision relates to clinical judgment.

4.9.2 The Ombudsman's office can generally consider complaints only when they have been fully considered under the NHS complaints procedure although this requirement can be waived in exceptional circumstances. Complaints should generally be made to the Ombudsman within 12 months of the events giving rise to them, or within 12 months of the complainant becoming aware that there were grounds for complaint, although there is scope to waive this requirement if there are special circumstances.

4.9.3 The Scottish Public Services Ombudsman Act 2002 requires listed authorities to take reasonable steps to publicise:

• the right conferred by the Act to make a complaint to the Ombudsman
• the time limit for doing so; and
• how to contact the Ombudsman.

4.9.4 The Ombudsman's contact details are:

Telephone: 0800 377 7330
Fax: 0800 377 7331
Website: www.spso.org.uk

From overseas: +44 131 225 5300
Text: 0790 049 4372