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 two stages to making a complaint about any NHS health care provider.
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.
(Note: This stage used to be followed by an independent review arranged by the Healthcare Commission. Since 31st March 2009, when the Healthcare Commission ceased to exist, complaints which are not resolved locally can go straight to the relevant ombudsman.)
Stage 2 involves taking your complaint to the relevant ombudsman service, which can investigate poor treatment and poor service by any NHS healthcare provider.
Complaints about NHS provision in England are dealt with by the Health Service Ombudsman, in Wales by the Public Services Ombudsman for Wales, and in Scotland by the Scottish Public Services Ombudsman. Complaints about health services or about the Department of Health and Social Services in Northern Ireland are considered by the Northern Ireland Ombudsman.
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 are going to make a complaint, 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.
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. There is a pre-action protocol 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 page of the Courts Service website.
You can have a look at the page on this site for more information about pre-action protocols. The clinical negligence pre-action protocol states that you 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".
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
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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.
Free, confidential and independent advice is available which can help you make a formal complaint about your NHS experience.
In England, help with NHS complaints is available from the Independent Complaints Advocacy Service.
In Wales, help with NHS complaints is available from Community Health Councils at Community Health Councils Wales.
In Scotland, help with NHS complaints is available from the Independent Advice and Support Service, operated by Citizens Advice Scotland.
In Northern Ireland, help with NHS complaints is available 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.
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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 Ombudsman for Wales
- The Scottish Public Services Ombudsman
- The Northern Ireland Ombudsman
The Health Service Ombudsman in England is part of the OPHSO (Office of the Parliamentary and Health Service Ombudsman).
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Social and community care
Information is given below on:
Social services complaints procedure
Ombudsmen
Mixed health and social care complaints
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
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Social services complaints procedure
In England, Wales and Scotland complaints first go to the local authority social services department internal complaints procedure. From 1st April 2009, unresolved complaints can go straight to the relevant ombudsman (see below).
This is for complaints where adult social care is funded by the local authority. Currently there is no independent redress for complaints by adults who fund their own social care. In England this will change in October 2010, when the Local Government Ombudsman will be able to consider this type of complaint.
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.
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Ombudsmen
If you have made a complaint to your local authority about social care provision, and you are not happy with their response, you can now take your complaint straight to the relevant ombudsman:
- the Local Government Ombudsman for England
- the Public Services Ombudsman for Wales
- the Scottish Public Services Ombudsman
- the Northern Ireland Ombudsman
The public service ombudsmen can investigate complaints about maladministration (the way a decision was taken, not the decision itself), which results in injustice to an individual person. They can also investigate service failure. Have a look at What is maladministration? for more information.
Ombudsman investigations can be thorough, but they can also be quite slow. It’s worth bearing this in mind when you are thinking about whether to complain to the ombudsman, or take a case to court for a judicial review of the local authority’s decision. At present, you cannot do both. The links above will take you to the page on this site which outlines how each of the public service ombudsmen work, and gives an overview of the advantages and disadvantages of this option.
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Mixed health and social care complaints
It can be difficult to work out whether your complaint is about the NHS or about social services. This is particularly true of care provided for the elderly in nursing homes. The Health Service Ombudsman and the Local Government Ombudsman now have an agreement where they can work together on complaints which involve both health and social care. You can take your complaint to either ombudsman – they will discuss with you which services are involved, and decide how best to deal with your complaint.
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Mediation
Mediation is sometimes used within the social services local complaints procedure. It might also be offered as an option at some stage of the court process. Of course, for mediation to take place, both sides need to agree to it. If you decide to try mediation, the benefit 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.
Mediation has been successfully used, but in limited numbers of cases, for community care disputes. See 2009 Mediation and Judicial Review
.
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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. Both protocols contain a standard clause reminding both parties that court should be a last resort, and requiring each side to consider some form of ADR. However all the protocols also include the safeguard that it is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR.’
If you are thinking about making a personal injury claim, you need specialist advice. See Advice Guide or Advicenow for more information.
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Further information is given below on:
Complaints procedures
Mediation
Advantages and disadvantages of mediation for PI claims
Paying for PI claims
Two 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, 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.
PI claims are often settled out of court after negotiation between the solicitors representing each party. This may be because such claims usually involve insurance companies, who have an interest in settling reasonable claims without high legal costs.
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Mediation
In recent years, a number of county courts have piloted mediation schemes. However, very 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 only a tiny minority of PI cases opted to use mediation. Despite this, she did find some 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 page on this site. You can read a summary of Hazel Genn’s research findings elsewhere on this site:
1998 Central London County Court
2007 Central London County Court
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Advantages and disadvantages of mediation for PI claims
The main advantage of mediation for PI cases is its flexibility. As with all mediation, you get a chance to tell your story, and to tell the other side directly how the injury has affected you. You may feel you have more control over the process than if you were at a hearing in court. You may also feel more involved in the discussion than if you leave it to your solicitor to negotiate on your behalf.
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).
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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. You need to talk to your solicitor about who will pay for this if you win, or if you lose. 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.
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.
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Two ADR schemes for personal injury
The Chartered Institute of Arbitrators (CIArb) runs a dispute resolution service called IDRS, which offers a 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 (IDRS) 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.
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March 2010
