Medical Negligence Lawyer, Oliver Thorne, reviews the approach to patient complaints taken by NHS Trusts and calls for a more empathetic and transparent framework
It has been reported in the press that Southern Health NHS Foundation Trust failed to investigate hundreds of deaths among its mental health and learning disability patients. Observers have asked whether this failure to investigate was intentional or whether it was a reflection of the inadequate procedures for dealing with complaints within the NHS.
Just this week (12 January 2015) I have received a Serious Incident Requiring Investigation (SIRI) report into the death of a baby that occurred at one of the country’s NHS Trusts a year ago. This was the second SIRI that was prepared. The first one failed to address the events surrounding the death in detail or to highlight the root cause of the death. The following SIRI highlighted numerous failings which could have prevented the death of this baby. I’m sure the failure of the first report to properly address the key issues was an honest mistake on the Trust’s part, but people would be forgiven for wondering in this type of case whether the Trust had tried to cover up their failings.
What is clear from the recent news regarding the failings at Southern Health is that there does seem to be an issue across the NHS in dealing with complaints. What effect then would a more transparent complaints handling process have on a patient’s ability to bring a potential clinical negligence claim? I speak to countless people contemplating a medical negligence action who say that they never wanted to take legal action against the NHS, but have been motivated to do so because they feel “fobbed off” at the way their complaints have been handled. A complaints process that patients regard as off hand and unsympathetic will cause anger and resentment and drive patients to speak to lawyers like me in order to get answers. For many clients, including the one referred to above, their main focus is getting the Trust to accept responsibility for what has happened and apologise for their failings and shortcomings.
The NHS Parliamentary Ombudsman has published a report which suggests that the NHS Trusts are more likely to absolve themselves from any wrong doing, rather than trying to provide patients with a transparent response to their complaint. In my own practice I often see responses from Trusts to patients’ letters of complaint in which they distance themselves from any wrong doing, yet the NHSLA go on to settle the subsequent medical negligence claim in the patient’s favour. Perhaps if Trusts were to adopt a more open and honest approach to patients’ complaints the number of medical negligence claims may reduce and those that are pursued will settle far quicker. This obviously has an impact on the cost of litigation to the NHS which is currently in financial turmoil.
It remains to be seen what effect the statutory underpinning of the duty of candour that should be present in all clinicians will have. In my experience clinicians, no matter how honest and open they are with patients when treatment has gone wrong, the main role of the complaint team is not to admit that they have done anything inappropriate. The kneejerk response to complaints is to make excuses and play down the events that have taken place. A similar theme is carried through to the NHS Litigation Authority who will often dispute liability when it quite clearly should be accepted and this simply adds to the growing legal costs.
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