Chinese whispers, NHS Complaints & Covid-19

It seems that people who have outstanding NHS complaints are getting letters from Clinical Commissioning Groups (CCGs) stating – for example:

Due to the ongoing COVID19 pandemic NHS England and NHS Improvement have recommended a “pause” to the NHS complaints process which allows all health care providers from all sectors to concentrate their efforts on the front-line duties and responsiveness to COVID19. 

I can see that NHS England has made an announcement concerning complaints (see below) but I have doubts about what the legal basis is for this.  If any reader can clarify this – I’d be grateful.

So far as I can see the relevant regulations – the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 have not been amended by the Coronavirus Act 2020 – please correct me if this is wrong.

Regulation 3 of the 2009 regs requires that (among other things) complaints must be dealt with efficiently … receive a timely and appropriate response etc.   Although ‘timely and appropriate’ is a wonderfully ambiguous phrase – a court would interpret it as requiring consideration be given to individual cases, such that a ‘blanket’ decision to ‘pause’ all complaints would not appear to be a proportionate response.

The NHS England announcement (click here to access it) makes no reference to legal change. It initially states blandly that :

From Monday 31 March 2020, NHS England and NHS Improvement is supporting all NHS providers to ‘pause’ new and ongoing complaints investigations, to allow providers to concentrate on front-line duties and responsiveness to coronavirus (COVID-19).

This would appear to have all the hallmarks of a ‘blanket decision’ – in legal parlance an ‘unlawful fettering’ of the duties in the 2009 regulations. I suppose it is possible that a number of CCGs have not read the full announcement and simply sent out letters after reading this bland (and – with respect – seriously misleading) statement.

The announcement however goes on to state that all complaints should be reviewed (‘continue to triage’ is the wording it uses) and not all should be paused – for example those concerning patient safety, practitioner performance or safeguarding and that:

Providers should be mindful of their responsibility to support vulnerable people who may be distressed by work being paused on their complaint. In these cases, providers should continue to ensure appropriate action is taken where they can, as well as signposting to an organisation who may provide support.

Consideration should be given to complainants who, at the time of the ‘pause’, have waited an excessive amount of time for their response (specifically those who have waited six months or more). These should be reviewed to decide if and how these can be resolved to the complainant’s satisfaction.

Any clarification on this issues from NHS England would be welcome. However if my understanding is correct – the NHS bodies who have sent out simple ‘we will be pausing all complaints’ letters – will need to correct this inappropriate impression.

Posted 9 April 2020