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If something goes wrong with medical treatment under the NHS, your right to complain is protected under the NHS Constitution.
The NHS constitution promises:
You are also protected by the duty of candour, brought in following a campaign by Avma. Under this, everyone working in the NHS has a legal duty to be open and honest with you when something goes wrong that appears to have caused or could lead to significant harm in the future.
It is often possible to resolve your complaint by talking informally with staff. However, if you need to take matters further there is a clear procedure to follow which ensures that your complaint can be fully and fairly investigated and, if necessary, independently reviewed.
The table (below) sets out possible paths your complaint can take.
View the NHS Constitution at: www.gov.uk/government/publications/the-nhs-constitution-for-england
Please see our leaflet on the duty of candour at: www.avma.org.uk/guides
Please note this is a typical example and your complaint may not follow this route exactly.
If the issue is not resolved: legal advice may be needed about whether judicial review is possible.
This flowchart shows the main stages a patient or family member may go through when making a complaint about NHS care. It begins with an informal complaint, which may resolve the issue. If the complaint is not resolved, it can move into the NHS complaints procedure, starting with formal local resolution. If the person remains unhappy after local resolution, they may ask the Parliamentary and Health Service Ombudsman to review the complaint. If the issue is still unresolved after this stage, the final possible route is judicial review.
You are under no obligation to make a complaint informally before you make a formal complaint. However, if you believe something has gone wrong with the healthcare provided to you or a loved one, it is almost always best to discuss your concerns with the medical staff as soon as possible, especially if your main concern is to have something urgently put right.
Talk to the staff concerned or a manager and explain why you are unhappy. If you prefer, you can contact the Patient Advice and Liaison Service (PALS) and ask them to investigate the matter. Contact your local hospital trust for contact details. If your complaint is about a family health service (such as a GP, dentist, optician or pharmacist) you can contact the practice complaints manager.
They may be able to settle your complaint straight away. If you are not satisfied with their response, however, you can submit a formal complaint through the local resolution procedures (see page 8).
Advocacy services are independent of the NHS and can help you to make your complaint. Their role includes arguing your case when you need them to and making sure the NHS follows the correct procedures.
The services are funded by local councils. Visit www.gov.uk/find-your-local-council to find yours.
You can find more information about NHS advocacy at www.nhs.uk/conditions/social-care-and-support-guide/pages/advocacy-services.aspx
PALS will try to help you resolve issues informally before you need to make a complaint. PALS can be particularly helpful if your issue is urgent and you need action immediately.
You will find a PALS in most hospitals and NHS GP, dentist, optician and pharmacy services. Ask at the practice or contact the local clinical commissioning group, or phone NHS111 (dial 111).
If you would like your complaint to be dealt with more formally you should use the NHS complaints procedure. The first stage is local resolution, where the NHS is required to investigate and respond to your complaint.
You will usually need to give your permission for someone to complain on your behalf. For older children the NHS will consider whether the child’s permission is required before they investigate.
If you are complaining on behalf of someone who is too ill to complain or is mentally incapacitated, the NHS will decide if you are a suitable representative to make a complaint.
If you do intend to make a complaint please see the heading below entitled “How to make a complaint” you may also find our template letter helpful: www.avma.org.uk/wp-content/uploads/Complaint-letter.pdf
You should make your complaint as soon as possible so that recollection of events is fresh. At the latest, your complaint must be made:
NHS organisations may consider complaints outside these time limits and can take into account aspects such as the length of your illness.
Under the NHS complaints procedure you can get:
In general the NHS complaints procedure will not:
Please see our self-help guides:
www.avma.org.uk/guides
complaint can be made verbally, in writing or electronically. If you make a verbal complaint, the healthcare provider must make a written record of the complaint and provide you with a written copy.
You can complain directly to the provider (hospital, GP, etc.).
You can complain to the commissioning body for the services.
This will usually be the Integrated Care Board.
Complaining to the commissioner may be the right option if you are uncomfortable complaining directly to your healthcare provider or do not think this is appropriate such as if there has been a breakdown of the relationship with the provider. Please note: if you have already complained to your healthcare provider, the commissioner will not be able to re-investigate the same concerns.
If your complaint is about healthcare in prison, or for services such as vaccination services then you will need to contact NHS England.
If your complaint is about the use of powers or how duties are carried out under the Mental Health Act, you can complain directly to the Care Quality Commission (CQC).
Powers and duties carried out under the Mental Health Act cover a wide range of services, including receiving care while detained in hospital or while on a guardianship or community treatment order. Complaints can be made by anyone – patients, staff or any member of the public. If you ask the CQC to investigate a complaint, they will usually ask you to complain to the service provider first. If you need them to, the CQC can help you make that complaint.
NHS England PO Box 16738, Redditch B97 9PT Email: england.contactus@nhs.net (addressed ‘For the attention of the complaints manager’) Tel: 0300 311 22 33 (Mon-Fri 8am to 6pm)
Local Integrated Health Board Find your local Integrated Care Board at: https://www.england.nhs.uk/integratedcare/integrated-care-in-your-area/
Care Quality Commission CQC Mental Health Act, Citygate, Gallowgate, Newcastle upon Tyne NE1 4PA Tel: 03000 616161
You must receive an acknowledgement of your complaint within three working days, which should:
If the investigation is likely to be delayed you should be notified in writing and given the reason for the delay.
At the end of the investigation you should receive a formal written response.
Whilst there is no formal time limit, the whole process should be discussed and agreed with you. The length of the investigation will depend on how complicated it is and who needs to be involved.
If you feel the investigation is taking an unreasonable amount of time, you can contact the Parliamentary and Health Service Ombudsman (see page 16). The Ombudsman looks into complaints where it is felt that the NHS has not acted fairly or put things right.
We suggest that you inform the Ombudsman if you have not received a response within six months. However, they may do no more than recommend that the NHS body responds to you as soon as possible.
Sometimes as part of the investigation you may be invited to meetings. These can be very helpful, particularly where there are complex medical issues. However you should be well briefed and prepared for such meetings. You may wish to request a written response to your complaint before the meeting to help you prepare for the discussion. You do not have to attend meetings if you do not want to: the organisation is obliged to respond in writing.
Do not agree with anything at the meeting that you are not sure about. It is also a good idea to ask for a full written record of the meeting.
If the NHS organisation thinks that your complaint has been fully investigated, they should send you a full written response concluding the local resolution stage of the complaints procedure. They should also tell you what to do next if you are not satisfied.
The NHS should send you a full written response to your complaint. Points to consider include:
The formal response may offer a further meeting to deal with any outstanding issues. You can also continue trying to resolve the complaint locally in writing. This can help clarify issues without the formality and delay of an independent review. However you do not have to accept this option: it is your right to request an independent review at this stage. If you agree to a meeting, the same principles apply as with earlier meetings – you will need to clarify what you remain dissatisfied with and why, usually in writing.
Following any further meetings or correspondence, you should receive a further formal written response. This should try to answer all of your concerns and to provide as comprehensive an explanation as possible. If you think that they have not done this, you can ask them to take further steps, such as asking for further investigation or examination of the medical records.
One option is to ask the hospital to consider obtaining or funding an independent report from a medical expert. This can be very helpful in resolving any dispute about the medical issues relating to your complaint.
You still have the right to ask the Ombudsman to investigate.
If you are not satisfied with the final response to your complaint, you have the right to request an independent review of your complaint by the Parliamentary and Health Service Ombudsman.
If you have tried local resolution and are not happy with the result, or if the investigation has taken over six months, you can ask for an independent review by the Ombudsman. Please note that throughout this leaflet we use the term Ombudsman which also refers to the PHSO.
You must go through the NHS Complaint (local resolution) stage first, the Ombudsman will not consider your complaint until you do.
Although you have a right to request an independent review of your complaint the review is unlikely to be granted if the Ombudsman considers that more should be done to resolve the complaint at local resolution stage.
You should try to request a review within 12 months of the incident occurring or when you first became aware that something had gone wrong. If this is not possible, you can ask the Ombudsman to consider your request, particularly if you have a good reason for the delay such as trying to obtain other advice.
When you contact the Ombudsman you should include:
You can use the Ombudsman’s own forms to submit your complaint if you wish. The Ombudsman can be contacted at:
Parliamentary and Health Service Ombudsman
Millbank Tower, Millbank, London SW1P 4Q Helpline: 0345 015 4033 (Choose option 3) Email: feedbackaboutus@ombudsman.org.uk www.ombudsman.org.uk
Each case will be looked at individually. The Ombudsman will examine the issues that have been raised and how the complaint has been handled at local level. Where appropriate the Ombudsman will take clinical advice and then make a decision.
Prior to the Covid-19 pandemic of 2020/21 the Ombudsman estimated that around 80% of cases were dealt with within 40 working days, some cases did take longer depending upon the circumstances and complexity of the complaint. The effects of the pandemic has left the Ombudsman with a backlog of complaints.
In normal circumstances, once your case had been received by the Ombudsman, they aimed to contact you within five days. However, because of pressures on public services brought about by the Covid-19 pandemic the Ombudsman has experienced considerable delay in reviewing complaints. In April 2021, the Ombudsman had over 3,000 complaints waiting to be looked at. To manage this caseload, the Ombudsman has focused on the more serious complaints about health services, including cases where people have faced a significant impact and where the Ombudsman can make the biggest difference.
For other complaints where someone has faced less of an impact, the Ombudsman will consider whether there is anything they can do to help resolve things quickly, if not, they will close the complaint. The Ombudsman remains committed to examining all complaints brought to them.
If a complaint can be resolved quickly, the Ombudsman will resolve it, but if it cannot and the impact is relatively limited, they will not consider that complaint any further. The Ombudsman will contact complainants by phone or letter to explain their decision.
The Ombudsman continues to log all complaints they receive about NHS funded services so that if they receive a similar complaint about the same organisation or see a pattern from a number of complaints, they may be able to raise this with the organisation in future.
The Ombudsman does not accept all cases for review. They are more likely to consider cases where there was:
The Ombudsman is more likely to review your case if you can show that a mistake or poor service which has had a negative effect on you has not yet been put right; for example, if the NHS has not taken any action to prevent the same problem happening again.
If the Ombudsman does not accept the case for review, you can make a complaint or ask for further information to be considered.
There is nothing to stop you taking legal action and having a complaint investigated at the same time. Legal action should not delay or prevent a complaint investigation.
However, the issue under investigation by the Ombudsman must not be covered by the litigation. The Ombudsman will not duplicate an existing investigation. For example, the PHSO may undertake an investigation into how the original complaint was handled while litigation is running as the court will not look at complaint handling. The PHSO will not explore the issue of whether treatment provided was negligent while litigation is running as this will be a core consideration for the court. If the PHSO investigated this as well as the court, it would simply be duplicating the investigation.
Historically there has been some confusion over this. If an NHS body says that they cannot investigate a complaint because you are seeking legal advice you should direct them to the clarification note published by the Department of Health on 20th March 2014 in their Clinical Commissioning Group bulletin which says: “Where the complainant is taking, or plans to take legal proceedings, a complaint may only be put on hold where there are exceptional reasons to justify it, or the complainant has requested that investigation be delayed”. Please also let Avma know if this happens. The link to this bulletin can be found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/314769/Complaints_litigation_ clarification_note_March_2014.pdf
There is no definition of what amounts to an “exceptional reason” but it is understood that formal requests by the coroner, police or judge to halt the complaint investigation would likely count as an exceptional reason
Your case may be turned down if you are taking or considering legal action for compensation and the Ombudsman feels the legal action could provide the answers you are looking for. However, you do not have to tell the Ombudsman whether you are considering legal action.
Even if you are pursuing legal action this should not delay or prevent the investigation. We suggest that you emphasise any issues which would not be resolved by legal means. This could include ensuring that similar incidents do not happen again, or improving policies and procedures.
If the Ombudsman finds your complaint to be justified, it will seek an apology or other remedy for you. This may include calling for changes to prevent such an incident happening again or reviewing procedures.
The Ombudsman can recommend compensation for inconvenience, distress and expenses incurred. However, this is not designed to replace the legal process for claiming compensation for clinical negligence.
If you have a problem with how the Ombudsman is handling your complaint you should first raise your concerns with the person handling the investigation or by calling their helpline.
If you are unhappy about the Ombudsman’s decision you can ask for a review by a special team who consider complaints about the Ombudsman. You will need to provide reasons for this, such as:
You should contact the Ombudsman with your complaint within three months of when you were sent their decision on your original complaint.
Once the Ombudsman has confirmed its decision, it is the end of the NHS complaints procedure. If you still strongly disagree with its decision the only way to challenge it is via judicial review – please see page 22 for more information on judicial review.
The complaints procedure is not specifically designed to award compensation. However, NHS bodies do have the discretion to make ex gratia payments (a payment made without recognising any liability or legal obligation). There is no harm in asking for this, but if the amount requested is very substantial it may be more appropriate to take legal action.
Ex gratia payments may be made in full and final settlement of any claim you may have so you should always seek legal advice before accepting any offer of compensation as you may not be able to seek additional compensation at a later stage. For more information, please see our leaflet on settling a legal claim: www.avma.org.uk/wp-content/uploads/Settling-a-claim.pdf
The Ombudsman can award compensation for inconvenience, distress, and expenses incurred. However, this is not designed to replace the legal process for claiming compensation for clinical negligence.
In deciding what to recommend, the Ombudsman looks to put the person affected back into the position they would have been had there not been a negative impact on them. If this is not possible, for example where the injustice is distress or unnecessary pain, the Ombudsman may suggest a financial payment to the complainant instead.
When suggesting financial payments, the Ombudsman relies on previous payments recommended as part of their casework, they also refer to their severity of injustice scale to help them identify how much ought to be paid. The Injustice Scale has been created by the Ombudsman for this purpose, it does not necessarily reflect the level of awards which would be made by the court, although the Ombudsman will consider financial awards made by the court.
The Injustice scale contains six different levels of injustice that a complaint could fall into, which increase in severity. Each level is then linked to a range of the financial amounts they usually recommend in those circumstances. For further information see the Ombudsman’s guidance on financial remedy: www.ombudsman.org.uk/sites/default/files/Our-guidance-on-financial-remedy-1.pdf look for the subheading entitled “Our scale”.
If you do wish to bring a legal claim for clinical negligence please seek independent legal advice from a solicitor specialising in this area of work or see our self-help guides Legal action: www.avma.org.uk/wp-content/uploads/Legal-action-England.pdf and claiming compensation: www.avma.org.uk/wp-content/uploads/Compensation.pdf
To find accredited expert clinical negligence solicitors in your local area who can offer advice, visit: www.avma.org.uk/find-a-solicitor.You may also find our guide on how to approach a lawyer for the first time helpful: www.avma.org.uk/wp-content/uploads/Approaching-a-lawyer.pdf
Although the NHS complaints procedure finishes with a final decision by the Ombudsman, you may be able to challenge the Ombudsman’s decision by seeking a judicial review. You will need to take legal advice to see if you are eligible, you should be aware that judicial review proceedings can be very expensive if you lose your case.
Judicial review is a legal process by which the courts assess whether a public body has reached or failed to reach a decision fairly. The grounds for this can include:
The most important point about judicial review is that it must be sought very quickly after the decision has been made.
You should seek legal advice as quickly as possible if you are considering this route. An application for judicial review should be made as soon as possible and, in any event, no later than three months after the public body’s decision has been made.
‘public body’ is a formally established organisation that is (at least in part) publicly funded to deliver a public or government service, though not as a ministerial department.
The NHS is a public body and the Parliamentary Health Service Ombudsman (PHSO) is a public office, both of their decisions may be subject to judicial review proceedings. However, in the case of the NHS complaints process, the first step is to refer the matter to the Ombudsman (PHSO). The Ombudsman is a government appointed official and their decision is subject to judicial review proceedings.
You should issue judicial review proceedings as soon as possible but in any event within three months from the date the grounds first arose. This does not mean you have three months to seek legal advice, it does mean you have a maximum of three months to seek legal advice and issue proceedings. You will need to move quickly if you intend to bring judicial review proceedings.
Pre-action protocol is a process which sets out the conduct and the steps the court normally expect parties to take before commencing proceedings for certain types of civil claims.
There is a pre action protocol for judicial review proceedings which applicants are expected and encouraged to follow, except in urgent cases. A failure to follow the protocol may result in sanctions being imposed by the court. Details of the protocol can be found here:
www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_jrv
The protocol encourages an applicant to serve a Letter before Action containing all the essential detailed information about the basis for the judicial review application.
Judicial review can be complex and expensive, you may be eligible for legal aid but this can be difficult to obtain. You should discuss the costs implications of bringing judicial review proceedings with your lawyer at the earliest opportunity.
If you would like further legal advice relating to Judicial Review, then we strongly advise you to contact lawyers who specialise in Public Law. Avma do not accredit solicitors in this specialist area of the law so we advise you to use The Law Society’s ‘find a solicitor’ webpage to find such specialists. The link can be found at: https://solicitors.lawsociety.org.uk/
If you need further help, advice and or information please contact Avma by completing a new client form at www.avma.org.uk/new-client-form we may be able to offer you some general support with the judicial review process. Please also see the end of this leaflet.Sources of help
NHS Advocacy will be able to put you in touch with a local contact to provide assistance on all levels of the NHS complaints procedure. These services are financed by local authorities.
Contact details
You can find more information about NHS advocacy at www.nhs.uk/conditions/social-care-and-support-guide/help-from-social-services-and-charities/someone-to-speak-up-for-you-advocate.
Availability varies from region to region as do the services they can offer. This may include general advice and support on complaints concerning NHS services. You should contact the relevant clinical commissioning group.
Contact details
Find your nearest clinical commissioning group at www.nhs.uk/service-search
This is the consumer ‘champion’ for health and social care. The services and support they provide will vary regionally.
Some will just be able to give general advice about NHS and social care complaints. In other areas they may be able to act as an advocacy service in formal NHS complaints.
Contact details
Tel: 03000 683 000 Fax: 01132 204702 enquiries@healthwatch.co.uk www.healthwatch.co.uk
PALS can give general information on NHS complaints and may be able to help resolve less serious complaints informally.
This is particularly beneficial, for example, if you or a family member are still in hospital and have concerns about treatment or discharge arrangements.
Contact details
Contact your local hospital trust for more information on PALS.
In general the CQC does not have the legal powers to investigate complaints about GP or hospital services but they do invite feedback from the public and they can use that information when looking at individual services for investigative or regulatory purposes.
This may then lead to use of the CQC’s legal powers to make NHS bodies improve their services.
It is a statutory duty on providers registered with the CQC to:
Contact details
Care Quality Commission (CQC) Citygate, Gallowgate, Newcastle upon Tyne NE1 4PA Tel: 03000 616161 www.cqc.org.uk
We provide free independent advice and support to people affected by medical accidents through our specialist helpline, written casework and inquest support services. We can also refer you to accredited clinical negligence solicitors if appropriate.
We have a wide range of self-help guides available on our website which can guide you through making a complaint to the NHS or a private healthcare provider; calling for disciplinary action against a healthcare worker or taking legal action for compensation.
You can contact Avma if you need support dealing with the Ombudsman or would like further advice on bringing a clinical negligence claims. For more information about our free casework and inquest support services visit www.avma.org.uk/help-advice or call our helpline.