Launching the report of a recent inquiry into complaints and litigation against the NHS, Stephen Dorrell, Chair of the committee said,
"The legal and operational framework of the Health Service Ombudsman should be widened so that she can independently review any complaint which is referred to her following rejection by a service provider.
The Ombudsman's current terms of reference prevent her from launching a formal investigation unless she is satisfied in advance that there will be a 'worthwhile outcome'. We have concluded that this requirement represents a significant obstacle to the successful operation of the complaints system. Patients should be able to seek an independent review of the findings of internal reviews by care providers; the terms of reference under which the Ombudsman works prevent her from properly fulfilling this role. This needs to be changed."
The report's other key finding is that there continues to be unacceptably wide variation in operation of complaints procedures within the NHS.
Commenting on this Mr Dorrell said:
"The Ombudsman's 2005 report "Making Things Better" called for the establishment of clear national guidelines for the handling of complaints within the NHS. Our Inquiry has revealed that:
- The NHS still has no national protocol for the classification and reporting of complaints, and reporting by Foundation Trusts remains voluntary
- The government's recent consultation on information strategy in the context of the Health & Social Care Bill did not mention procedures for handling complaints
- It remains unclear how patients’ complaints about services delivered by primary care will be handled following passage of the Health & Social Care Bill
- NHS culture is too often defensive and the service remains to be persuaded to adopt a more open culture.
We welcome the Government’s commitment to introduce a duty of candour within the NHS. We recommend that all providers of NHS care should in future owe a duty of candour to their commissioners under which they provide, among other things:
- Timely reports, prepared to an agreed protocol, of all complaints made to them by NHS patients
- In cases when complaints are upheld, Complaints Action Plans to address the weaknesses which have been revealed
- Progress reports of the actions required under Complaints Action Plans
We further recommend that Commissioners should be under a duty of candour which requires them to publish this information on a regular basis.
We attach importance to the individual process changes which we recommend, but we believe the most fundamental change which is required is a change of culture within the service. We look to both the NHS National Commissioning Board and Healthwatch England to monitor progress in delivering this fundamental change in the direction of a less defensive and more open culture."
The Inquiry also examined the arrangements under which the NHS handles litigation by patients.
The committee concluded that the existing clinical negligence framework (based on qualifying liability in tort) offers patients the best opportunity possible to establish the facts of their case, apportion responsibility for errors, and secure appropriate compensation. It does not support a switch to no-fault compensation.
The Government has issued proposals which will reduce access to legal aid for most clinical negligence cases. The committee warns ministers that the public will judge these proposals by how they alter access to justice. The Government must take care to gauge its proposals against this yardstick.
The committee also recommends that Ministers should review the regulatory framework that governs the activities of claims management companies. It believes that current practice hinders complaint resolution for patients and pushes up the cost of litigation.