NHS Complaints in England and Wales and the Importance of Free Independent Legal Advice

The NHS is an integral part of our society and, for the majority of those patients who find themselves in need of medical treatment and care, something which they could not be without.

However, it is sadly the case that there are patients who unfortunately receive sub-standard medical care and treatment, and this can often have serious and devastating implications for them, their families and loved ones.

When something does go wrong, patients often seek two things; to firstly find out what happened and why, and secondly to try to prevent the same thing happening to someone else in the future.

The first port of call for patients and their relatives looking for those outcomes is often to make a formal complaint to the hospital with the expectation that the complaint would be investigated fairly and impartially, with any failings being identified and addressed.

Health Service Ombudsman’s criticism of the NHS complaints system in England

However, recently the Parliamentary and Health Services Ombudsman has issued a damning report criticising the way that the NHS in England conduct their investigations where serious or avoidable harm is the centre of the complaint.

In particular criticism was centred at the fact that 40% of investigations were deemed inadequate in finding out what had happened, a shocking 73% of cases were deemed to have not identified failings where there had been substandard care, 20% of investigations were missing medical records, statements and interviews and in 41% of cases patients were given inadequate explanations of what went wrong and why.

Perhaps one of the most worrying statistics highlighted by the Ombudsman was that in only 52% of cases was there an independent clinical review.

So what is the position in Wales- NHS ‘Redress’ and the Putting Things Right Scheme

In 2011 the NHS in Wales brought in the ‘Putting Things Right’ Scheme; a scheme aimed at identifying and addressing failings in care and treatment.

Under the Scheme, where a patient has submitted a concern to a Health Board, the Health Board must then investigate the issues raised and provide the patient with a full response and report, including details of the investigation undertaken and the findings and outcomes of the same. Where the Health Board identifies any failings, they are obliged to admit to those under the rules of the Scheme. 

Availability of free legal advice

Where the Health Board does identify that there have, or may have been, failings causing harm to a patient (or as it is referred to under the Scheme, a ‘qualifying liability’), then that patient is entitled to free independent legal advice from a firm of solicitors with recognised expertise in clinical negligence.

Following that, under the Scheme, there is also often an opportunity to obtain an independent expert review from a consultant outside the Health Board and there is also provision for the Health Board to make a financial offer of settlement, to compensate the patient (as far as a financial settlement can) for the injury that they have suffered.

A solicitor instructed under the Putting Things Right Scheme will be able to guide a patient or their family member or representative through the process of the investigation and offer advice on the rules and scope of the Scheme itself, the investigation, the evidence obtained, the available records, on instructing an independent medical expert to carry out a review and on the appropriateness of any financial offers of settlement made.

Given the concerns raised by the Ombudsman in their recent report, it appears that the availability of this free independent legal advice is a valuable feature of the complaints system in Wales, and an important safety mechanism in ensuring that a patient’s concern is investigated justly and appropriately.

Rebecca is an Associate Solicitor in the Medical Negligence team and advises clients on all aspects of medical negligence claims, as well as concerns raised under the Putting Things Right Scheme (NHS Concerns, Complaints and Redress Arrangements (Wales) Regulations 2011). Rebecca can be contacted on rebecca.bennett@jcpsolicitors.co.uk

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