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Complaints Procedure

Below we have tried to briefly outline the process for complaining about NHS treatment, and if this is unsatisfactory for suing a doctor, surgeon or other healthcare professional. If you decide that the NHS complaints procedure is inadequate, and that you need to sue the NHS instead we can provide you with all the asistance you need. If you want compensation for your injury please send your details via the claim form opposite.

NHS Complaints Procedure

When it first appears that you have cause for concern it may not be necessary to employ a solicitor at all as the NHS has a complaints procedure in place. The Commission for Healthcare Audit and Inspection (healthcare commission) is now responsible for this and they aim to deal with matters swiftly and at a local level if at all possible. The procedure has a number of stages:

If you decide to choose this course of action, it would be wise to keep records of all correspondence, calls, meeting outcomes etc. Of course this will only be appropriate if your complaint is against an NHS controlled body and will in the end only lead to at the most:

It will probably not lead to:

The complaint must be made within 6 months of the event, or within 6 months of discovery of a problem, provided the initial event was in the last 12 months. Obviously this may not be appropriate in a number of cases.

Stage 1 - Local Resolution

The initial complaint can be made to a staff member who may refer it to the complaints manager, or directly to this person or the hospital's chief executive. It should be made in writing or a written record of an oral complaint should be signed. This could include such things as:

You should not commence legal action at this stage, as this halts the process, but could take legal advice

The investigation should be completed in 20 working days, and conclude with a formal written response. The procedure may include meetings that you have to attend, which should be prepared for.

Stage 2 - Independent Review

If you are not happy with the initial decision then you have the right to apply for an independent review.

Stage 3 - Ombudsman

The final stage is to have the decision of the independent review looked at by the ombudsman.

Instructing a Solicitor

When it appears that the complaints procedure is inadequate then a solicitor should be consulted. Many will offer a free initial interview.

Funding options:

Getting medical records

As outline din the privacy policy, under the Data Protection Act 1998, anybody has the right to access personal information held about them in either computerized or written form. This of course extends to NHS records and those held by private healthcare providers.
The following outlines such details as who can access the records, how to do it, and how to get them changed:

Access

Naturally the patient themselves is eligible to access the records, or a parent/guardian in the case of a child. The court may also appoint a representative for somebody no longer able to manage their own affairs. If litigation is being considered then the patient and his advisers may gain access to the records, and in fact a court may order the disclosure of relevant documents. A solicitor etc will probably ask you to sign a consent form, so that records can be accessed in this way

Application Process

This part may be handled by your advisor, but generally a written request to the holder of the records will suffice. There will usually be some form of standard request for this purpose. The records may be kept separately so it is important to be specific

Time Limit

The request should be complied with within 40 days. Any additions made in this period should be provided within a further 21 days.

Charges

There can be a maximum charge of £10 to access the records and a further maximum charge of up to £50 in total to provide copies. Unintelligible records should be provided with an explanation at no further charge.

Refusal of access

Access can be refused if the record holder believes that disclosure would harm the physical or mental wellbeing of the patient or another person. There is no need to disclose of part of the records has been withheld, unless this has been specifically asked for.

Correcting information

Information held should be accurate, but there is no need to complete omissions. A request can be to correct or clarify a statement and if this is not complied with then a complaint can be made to the Data Protection Registrar. It may also be possible to totally remove information that is causing unwarranted damage or distress

Complaining

A complaint can be made through the NHS complaints procedure (above) or the Information Commissioners Office whose procedures or outlined on their website.

Issue of proceedings and experts

Court proceedings are begun by the service of a number of documents by the claimant on the defendant's solicitors. These documents are also then lodged at the court. They include the Particulars of Claim which may be drafted by the barrister and sets out the allegations of negligence. There may also be a medical report on the injuries and a schedule of losses setting out the costs incurred by the client as a result of the negligence.

The defence team will then respond to the individual points in the Particulars of Claim with the Defence. This may asset that there was no negligence, or that the negligence did not materially affect the claimant. There may also be a suggestion that the claimant contributed towards their injury.

Upon receipt of the Defence, a timetable will be set for matters to progress toward the trial. This will include exchange of documents between parties. The first documents exchanged are those to be used at trial e.g. medical reports, wage slips to prove losses. Both sides then serve witness statements which they intend to use. These can detail the events that caused the injury and the subsequent effects. The defendant's statement will set out his side of the argument.

Any claim will be supported by the evidence of a suitable medical expert. This will deal with issues of both liabilty and causation. It is important to consider both issues, as an the negligent act must be shown to have caused the damage to the claimant. The report could also deal with the claimant's prognosis and the degree of injury caused. The report is exchanged with the defence's expert so that both sides are aware of points that will be covered. A meeting is then scheduled between the experts so that areas of agreement and disagreement can be identified before trial.

Trial

When the case reaches this point, the case will be presented by a barrister who will already have advised at earlier stages of the claim. A solicitor will also be present to advise. The case is presented to the judge by claimant and defence barristers and experts. The costs for this will be covered by legal expense insurance or legal aid and so there will be no additional financial risk. In many cases it is possible for a settlement to be reached at this late stage without a full trial.

The content and opinions expressed on this website are those of the authors and are given for information only. It is not legal advice which must be obtained from a qualified solicitor or barrister. The authors can accept no responsibility for any loss resulting from action based on these opinions.