Health and Social Care

2.Main Content

Health and Social Care

This section describes the ADR options available for disputes about health care, social care, and personal injury. For legal information about these problems, have a look at the Advicenow website.

Further information is given below on:
NHS health care
Social and community care
Personal injury

NHS health care
Information is given below on:
NHS complaints procedure
Help with complaints
More about the ombudsman

NHS complaints procedure
There are three stages to the NHS complaints process. All of them may involve some form of ADR, but there is not a fixed procedure for using conciliation or mediation in every case or in every area.

Stage 1 is known as local resolution. The aim is to resolve a complaint directly with your local healthcare provider, if that is possible. Ask your GP, or hospital, or whoever you have a complaint about, for a copy of their complaints procedure. Many of these complaints procedures will include some form of Conciliation or Mediation.

Stage 2 is an independent review. If you are not happy with the way your complaint is dealt with locally, you can ask for an independent review. In England, these reviews are carried out by the Healthcare Commission.

Stage 3 involves taking your complaint to the Health Service Ombudsman. The ombudsman can investigate poor treatment and poor service by any NHS healthcare provider.

The NHS complaints procedure does not provide you with compensation – it aims to discover whether something has gone wrong with your treatment, and to offer an explanation or an apology. It also aims to help the NHS learn from complaints, and change and improve its own practice and procedures.

If you believe a doctor or healthcare provider has been clinically negligent, and you should be paid compensation for this, you need to consider whether to take your case to court. But there are two important things to note:

if you say you are going to court, or thinking of going to court, you can be excluded from using the NHS complaints procedure. You need to decide which route is likely to be best for you – you can’t do both at the same time.
even if you are eligible, you may not get legal aid for clinical negligence claims under £10,000 if the Legal Services Commission believes that the NHS complaints procedure would be more appropriate

There is a pre-action protocol for clinical negligence, which sets out what you are expected to do before making a court application. This includes:

giving the other side all the relevant information at an early stage
trying to negotiate an early settlement
considering mediation

Details of the protocol can be found on the Pre-action protocols website.

You can have a look at the Before going to court page on this site for more information about pre-action protocols. The clinical negligence pre-action protocol states that complainants should consider the NHS complaints procedure before going to court, but makes it clear that this procedure does not offer compensation: "patients might choose to use the procedure if their only, or main, goal is to obtain an explanation, or to obtain more information to help them decide what other action might be appropriate".

If you are going to make a complinat, you should make it as soon as possible – there is usually a time limit of six months from the date when the action you are complaining about happened, or from the date you became aware of it.

In October 2006 the NHS Redress Act was passed. This gives the Secretary of State for Health the power to set up a redress scheme for low level complaints of clinical negligence. The aim is to provide a single NHS complaints process that can both offer an explanation and an apology, and also award compensation up to £20,000. There are no details in the Act of how the scheme would work in practice. Concerns have been expressed about how independent the scheme would be, and how easy it would be to get access to independent legal advice when making a complaint.
top

Help with complaints
You can get general information and advice on how to make an NHS complain from PALS – the Patient Advice and Liaison Service. Every local healthcare provider should be able to put you in touch with your local PALS.

The Independent Complaints Advocacy Service (ICAS) is a free, confidential and independent service which can help you make a formal complaint about your NHS experience. You can contact your local ICAS office through your local healthcare provider, through NHS Direct , or you can get in touch directly (details can be found on Advice Guide).

Help with complaints is available in Scotland from local health councils and in Northern Ireland from health and social services councils.

Citizens Advice provides useful, up-to-date guidance on making a complaint about the NHS. For advice on using the NHS complaints procedure, see Advice Guide. The Advicenow website will also give you access to the best and most helpful websites on this topic.

If you believe you are owed compensation, or are thinking about going to court, you must get some independent legal advice. This is a very confusing area! Make sure you get advice before you agree or sign anything which prevents you taking legal action.
top

More about the ombudsman
If you use the NHS complaints procedure and you are not happy with the outcome, you can go to an ombudsman.
- The Health Service Ombudsman for England
- The Public Services Ombud for Wales
- The Scottish Public Services Ombud
- The Northern Ireland Ombudsman

The Health Service Ombudsman in England is part of the OPHSO (Office of the Parliamentary and Health Service Ombudsman). The OPHSO website outlines what NHS complaints can be investigated:

The Health Service Ombudsman can carry out independent investigations into complaints about poor treatment or service provided through the NHS in England. If you have suffered because you received poor service or treatment or were not treated properly or fairly - and the organisation or practitioner hasn't put things right where they could have - we may be able to help.
Our investigators look into complaints against NHS services provided by hospitals, health authorities, trusts, GPs, dentists, pharmacists, opticians and other health care practitioners. We can also investigate complaints against private health providers if the treatment was funded by the NHS.

You can find out more on the Health Service Ombudsman website.
top

Social and community care
Information is given below on:
Social services complaints procedure
Mixed health and social care complaints
Ombudsmen
Mediation

Complaints about social services include:

quality of services
failure to provide services
delay
treating people unfairly in providing services
not following policies or guidance

top

Social services complaints procedure
In England, Wales and Scotland complaints first go to the local authority social services department internal complaints procedure. Unresolved complaints can go to the Local Government Ombudsman in England, the Public Services Ombud for Wales or the Scottish Public Services Ombud.

In Northern Ireland, social services are provided by Health and Social Services Trusts, which have their own internal complaints procedures. These procedures include access to an independent review if the complaint is not resolved satisfactorily at the first stage. Unresolved complaints can go to the Northern Ireland Ombudsman.

The social services complaints procedure is a statutory procedure. Local authorities are required to have a social services complaints procedure following the national guidelines. The Commission for Social Care Inspection (CSCI) has been the single inspectorate for social care in England since April 1, 2004.

In Northern Ireland, although the same legislation does not apply, complaints are still subject to statutory procedure. Social services are delivered by Health and Social Services Trusts, and complaints go through the trust's own procedure, which must follow the statutory directions laid down by the Department of Health, Social Services and Public Safety.

The full complaints procedure has a three-stage process.

Stage 1 A local, informal complaint. Many complaints are resolved at this stage.

Stage 2 A formal complaint, which takes up to three months (one month for complaints relating to young people). This involves an investigation of the complaint. With children and vulnerable adults there must be an independent oversight of this stage. In other cases, the investigation can be conducted by someone within the local authority but outside the department where the complaint arose.

Stage 3 The final stage, a review panel, involves a hearing - which, although informal, can still be daunting for the complainant. The entire process can take a year.

Mediation is being adopted by some local authorities at various stages in the complaints procedure. It is best used as early in the process as possible. (See below for more on mediation.)
top

Mixed health and social care complaints
With many community care complaints it is difficult to determine whether the responsible body is the health service or social services. This is particularly true of care provided for the elderly in nursing homes. Where a complaint could go through either the NHS complaints procedure or the social services complaints procedure, you should get advice on which procedure to use. The social services procedure allows for an investigation at the second stage if a complaint is not resolved informally, whereas the NHS procedure does not always involve an investigation of the complaint.

If you are still not sure which is the correct procedure, you can make a complaint to both – but this means you have to go through everything twice, and it can be hard work.

If you feel it would be impossible to get what you want through the complaints procedure, or if the local authority has delayed unreasonably in responding to the complaint, you can go straight to the relevant ombudsman.
top

Ombudsmen
If a complaint remains unresolved after being through the local authority's complaints procedure, it can go to the relevant ombudsman:
- the Local Government Ombudsman for England
- the Public Services Ombud for Wales
- the Scottish Public Services Ombud
- the Northern Ireland Ombudsman

As an example, in 2005-06 social services complaints represented 8% of the complaints received by the Local Government Ombudsmen for England.

Many complaints to the ombudsman about social and community care are to do with delay in providing services which the complainant has been assessed as needing, or which have been agreed in a care plan. The most useful outcome for a complainant in such cases is a recommendation by the ombudsman that the local authority should provide the care package which has already been agreed. Other possible outcomes include compensation (for loss of service, distress or inconvenience) and improvements in procedure.

Ombudsmen are limited to looking at complaints about maladministration (the way a decision was taken, not the decision itself), resulting in an injustice to an individual. Have a look at What is maladministration? for more information. It can be difficult to work out whether the ombudsman is or is not able to investigate your complaint, as maladministration is quite hard to define. If you ar enot sure, you can phone the LGO adviceline on 0845 602 1983 to talk about whether your complaint is likely to be accepted. If you are an adviser, you can also phone this number and ask to be put through to an investigator to discuss more complex issues, or use the "Guide for Advisers" section on the Local Government Ombudsman for England website.

It is also worth bearing in mind the length of time an ombudsman investigation can take, when deciding how best to resolve a dispute. An outline of how the scheme works, and an overview of the advantages and disadvantages, can be found on the Local Government Ombudsman page on this site.
top

Mediation
Mediation is increasingly being used within the social services complaints procedure. Some authorities provide for independent mediation as an option at any stage in the procedure and are training staff to recognise at as early a stage as possible when a complaint might be suitable for mediation. Some are also offering mediation even after an investigation has taken place, as a way to repair damaged relationships.

As in many other areas, the benefit of mediation is that you have a chance to tell your story, and to talk face to face with someone from social services who has the power to apologise and to remedy the mistake. But mediation is unlikely to result in large compensation payments, and there is no guarantee that the problem will be resolved. Also, as mediation is a private settlement, it cannot produce any legal decisions which others can rely on. However, it’s worth noting that it is possible to agree changes in practice or procedures as part of a mediation agreement.
top

Personal injury
As with other civil claims, in personal injury (PI) cases solicitors are increasingly being required to consider alternative means of dispute resolution. There are two pre-action protocols relevant to personal injury:

the Pre-action Protocol for Personal Injury Claims
the Pre-Action Protocol for Disease and Illness Claims

The aim of all the protocols is to encourage parties to try to resolve the dispute before going to court. This includes sharing information with the other party at an early stage, and trying to negotiate an agreement before making an application to court. It’s worth noting that neither of these two protocols specifically mentions the use of ADR or mediation.

If you are thinking about making a personal injury claim, you need specialist advice. See Advice Guide or Advicenow for more information.
top

Further information is given below on:
Complaints procedures
Mediation
Advantages and disadvantages of mediation for PI claims
Paying for PI claims
PI mediation schemes for specific types of problem
Other ADR schemes for personal injury

Complaints procedures
For some accident and injury cases, you may be able to get what you want by using a complaints procedure. Don’t forget that a complaints procedure is likely to provide you with an explanation of what happened, or an apology, but not compensation. If you are looking for a significant sum of money because of an accident or injury, then you need to consider negotiation, mediation, or going to court.
top

Mediation
PI claims are often settled out of court. This may be because such claims are often dealt with by insurance companies, who have an interest in settling reasonable claims without high legal costs.

In recent years, there have been a number of mediation schemes attached to county courts. In these schemes, few parties in PI cases have chosen to use mediation. The Central London County Court mediation scheme was evaluated by Professor Hazel Genn, who found that though only a tiny minority of PI cases opted to use mediation, there was evidence that, where the medical situation was clear, it was possible to mediate on both the issue of liability, and the amount of damages. You can find more information about the Central London County Court scheme on the Central London County Court page on this site. You can read a summary of Hazel Genn’s research findings on 1998 Central London County Court.
top

Advantages and disadvantages of mediation for PI claims
The main advantage of mediation for parties in PI cases is its flexibility. In terms of remedies, this means that you can agree on things other than just money, such as an explanation or an apology. For insurers, there is the possibility of offering an acknowledgement of suffering without admitting liability. The parties themselves are given a large amount of control over how the process is conducted and will participate more actively in a mediation session than in settlement negotiations or a court hearing. Often it is crucial to have the input of the claimant's partner or family, who will also have been affected.

The main disadvantage of mediation is that there may be a considerable imbalance of power between the parties. If you have been injured by an accident and are claiming compensation, you are likely to find that the other party is an insurance company, with a lot of experience of legal proceedings. Unless you have good legal advice from a solicitor or advisor with a lot of experience in this area, you may find yourself at a disadvantage. Getting legal advice in PI claims is not straightforward, as most PI claims are not eligible for legal aid (see ‘Paying for PI claims’ below).
top

Paying for PI claims
In England and Wales, since April 2000 most PI claims are not eligible for legal aid. Unless you can afford to pay for legal advice and representation, you will probably have to rely on a "no win no fee" arrangement with your solicitor.

When you agree to try mediation, the usual arrangement is that each party pays their own share of the mediation cost. The cost of commercial mediation in Civil and commercial disputes can be several hundred or even several thousand pounds. In PI claims, however, the insurer might agree to pay for the mediation for both sides, because it is in their interest to achieve an early settlement. It is also possible to agree that one party will pay for the mediation, as part of the negotiated settlement.

In Scotland and Northern Ireland, legal aid is still available for legal advice and representation for PI claims, but it is not available for PI mediation.
top

PI mediation schemes for specific types of problem
The Chartered Institute of Arbitrators (CIArb) has introduced two new mediation schemes for personal injury claims:

a mediation scheme for the Association of British Travel Agents (ABTA) - the CIArb has operated the well-known ABTA arbitration scheme for many years. The mediation scheme is for holiday-related personal injury claims arising from disputes with ABTA member companies. Most tour operators and travel companies in the UK are ABTA members. This scheme is available in England and Wales, Scotland and Northern Ireland; it is also available to any consumer in any country in relation to a dispute with an ABTA member company.
mediation for personal injury claims made as part of a housing disrepair claim. This scheme is currently operated on behalf of the London Borough of Hackney to resolve disputes over disrepair between the council and its tenants and leaseholders. The disputes are heard by an independent arbitrator appointed by the CIArb, and after the arbitrator has made a decision on the main issues, the amount of compensation can be agreed using mediation.

More information can be found on the IDRS website.
top

Other ADR schemes for personal injury
The Chartered Institute of Arbitrators (CIArb) has also developed a new scheme for dealing with personal injury claims. It is called Rapid ADR, and offers a choice of mediation, adjudication or arbitration for PI claims.

The mediation scheme provides a cost-capped half or full day mediation session, with no financial limit to the claim. Complainants retain the right to take the case to court if an acceptable settlement is not reached.
The adjudication scheme provides documents-only adjudication for claims up to £15,000, which aims to provide a decision within six weeks. The adjudicator’s decision is binding on the company if the complainant accepts it within four weeks. Complainants retain the right to take the case to court if they are not happy with the adjudication result.
The arbitration scheme provides a cost-capped, paper-based arbitration process, with an option for a full arbitration hearing if needed. There is no financial limit on the claim, and the arbitrator’s decision is binding on both parties in the courts.

More details can be found on the Rapid ADR website.

A group of independent mediators, InterResolve, has also set up a scheme which offers free access to legal advice from a specialist personal injury lawyer, if you don’t already have a legal adviser of some kind. The InterResolve scheme also offers an opportunity to use mediation to resolve the dispute, again without any cost to the injured party. The advantages of this scheme are that it is free to the user, and is likely to lead to an agreement in much less time than a court case. However, the cost of the legal advice and the mediation is paid for by the insurance companies who are members of the scheme. The Civil Justice Council is currently exploring whether third party litigation funding of this kind should be regulated, and in particular asking what degree of control the funder should have over the process of the case. You can find more information about the scheme on the InterResolve website.
top

January 2008