NHS complaints – how does the system work and what can be achieved?

Posted: 05/08/2024

Often before deciding to bringing a medical negligence claim, patients and their families may consider the option of making a complaint. Sometimes the aim of this is to obtain further information but frequently it is much more about expressing how they feel about the care and treatment provided and its consequences and looking for an acknowledgement or apology. In many instances, the most important thing sought is reassurance that lessons have been learned and that similar mistakes will not occur again, particularly in cases where events have led to a death or other very serious consequence for a patient. Sometimes this cannot be achieved by litigation and so a complaint is made in the first instance. 

For care provided under the NHS, there is a formal complaints procedure in place – set out and operated under the National Health Service Complaints (England) Regulations 2009.

Who does the complaints procedure apply to? 

The complaints procedure applies to NHS bodies and all NHS healthcare providers, including commissioning bodies and primary care providers as well as private providers delivering services to NHS patients under agreements with NHS funders. Any patient, therefore, who has received NHS provided care has the opportunity to utilise the complaints procedure. 

In the first instance, the complaint should be submitted to the healthcare provider – for example the GP practice or hospital – although in some circumstances it is better submitted to the commissioning body (the body providing the funding for the care). 

Who can complain? 

The procedure provides that:

• complainants should normally be current or former patients, or their nominated or elected representatives;
• patients aged 16 or over whose mental capacity is unimpaired should normally complain themselves or authorise someone to bring a complaint on their behalf;
• children under the age of 16 can also make their own complaint, if they're able to do so.

It is possible for a patient to have a complaint submitted by a representative on their behalf although the responding entity will need to consider whether that person is an appropriate person to deal with the complaint. 

How to complain 

The regulations are not prescriptive about how a complaint should be drafted but it does need to be in writing. Our advice on complaints is generally to: 

• submit them to the practice manager at GP surgeries or the CEO of NHS trusts;
• be clear as to exactly what aspects of the care provided have caused concern and what those concerns are;
• explain whether the concerns relate to care from an individual (and be specific where possible) or more to the systems and processes in the hospital;
• ask questions where possible, such as ‘Why did this happen / not happen?’, ‘Why wasn’t information given?’;
• be clear what is important to you in terms of the response – whether, for example, you are seeking apologies, explanations or changes;
• ask for any records or documents that you wish to see;
• request that receipt of the complaint is acknowledged and an indication given of the likely timescale to respond.

How long do I have to complain? 

A complaint must be made within 12 months, either from the date of the incident or from when the complainant first knew about it.

The regulations state that the entity to whom the complaint is directed should still consider a complaint after this time limit if:

• the complainant has good reason for their complaint being delayed, and
• it is still possible to investigate the complaint fairly and effectively, despite the delay.

Timescale to respond 

There is no fixed time period in which a response has to be provided but if a response has not been received within six months, an explanation should be given. Usually the response is in writing but sometimes a meeting will be offered to discuss the issues. 

What happens if I am not satisfied with the response?  

If a complainant is still dissatisfied after submitting their complaint and receiving a response, they can complain to the Parliamentary and Health Service Ombudsman (PHSO)  who will assess if the complaint has been dealt with appropriately – and can direct that the body responding provide further information / take additional action as well as give the Ombudsman’s own view on the issues raised. 

Complaints and claims 

It is possible to submit a complaint and start looking at a medical negligence claim at the same time. We will usually discuss with you the merits of submitting a complaint (if this is still in time) and whether that is best done before starting to investigate a claim or the two can be done in parallel. Again, this is often determined by what a patient or family is looking to achieve. We can provide advice and input on drafting complaints and considering the response received. 

The NHS complaints process does give an opportunity for direct dialogue and investigation and can in some cases achieve all that a patient or family is seeking in terms of their concerns. Much depends on what individuals hope to achieve and the approach taken by the responding body. What the complaints process cannot do is provide compensation or be the start of a disciplinary process – those are things that need to be addressed by other routes. 

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