Health Service Ombudsman

2.Main Content

Health Service Ombudsman

This page contains information about the Health Service Ombudsman, including:
What it does
Advantages and disadvantages
Which complaints are eligible?
Which complaints are not eligible?
Complaints about health care in prisons
Cost
Timescale
Making the complaint
Getting information about the NHS
Procedure
Outcomes

What it does
The Health Service Ombudsman investigates complaints about the National Health Service (NHS) in England. The Health Service Ombudsman covers NHS hospitals, trusts and health authorities, GPs, dentists, opticians, pharmacists and other providers (including private health care) where the service is paid for by the NHS.

Complaints about NHS provision in Wales are dealt with by the Public Services Ombud for Wales, and in Scotland by the Scottish Public Services Ombud. Complaints about health services or about the Department of Health and Social Services in Northern Ireland are considered by the Northern Ireland Ombudsman.
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Advantages

it is independent of the NHS
it aims to treat everyone fairly and impartially, whatever their background or circumstances
it is confidential for individual complainants
it is free
a complaint can be fully investigated
it is a good way to get an investigation into common problems that affect a wide range of people
it can lead to improvements in complaints handling and other procedures within the NHS

Disadvantages

it can take a long time to investigate a complaint
it is the final rung in a long complaints process
you won’t get the same level of damages or compensation that you would in court

It is important to remember that the ombudsman will not act as the "patient's champion", any more than she will serve as defender of NHS staff. She is independent, and until she has investigated and reached a conclusion on the complaint, she does not take either party's side.
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Which complaints are eligible?
The ombudsman can consider complaints about care, treatment and other services provided or paid for by the NHS. This will include:

the wrong treatment
poor treatment
errors in diagnosis or treatment
significant mistakes over appointments to see a doctor or go to hospital
failure to provide or pay for a service such as continuing care
delay that could have been avoided
faulty procedures, or failing to follow correct procedures
unfairness, bias or prejudice
giving advice which is misleading, or inadequate
rudeness, and not apologizing for mistakes
not putting things right when something has gone wrong

The Health Service Ombudsman can’t look at complaints about private health care in non-NHS hospitals or nursing homes. Nor can she investigate complaints about staff matters such as pay or recruitment. Also, the Ombudsman is not allowed to investigate a complaint if you have taken – or intend to take – legal action.

Most of the complaints received involve clinical matters. Of these, two of the largest categories are complaints about in-patient hospital treatment and treatment by GPs. The ombudsman can also consider complaints about being struck off a GP's list. Recently, the Ombudsman has dealt with a lot of complaints about payment for continuing care in nursing homes. There is a very helpful guide on the Health Service Ombudsman website about this issue.

The ombudsman also has a role in ensuring that the NHS complaints procedure has been followed. She will only deal with complaints that have not been resolved through the local resolution or independent review stages of the NHS complaints procedure. In certain circumstances, however, she can use her discretion to accept complaints that have not exhausted the procedure, for example if the local procedure has taken a very long time or if local relations have broken down.

The ombudsman can consider complaints about the way a complaint was handled, including:

delays in dealing with a complaint at the local level
unreasonable refusal to arrange an independent review by the Healthcare Commission
not receiving a satisfactory response to the complaint

Unlike other public sector ombudsmen, the Health Service Ombudsman is not limited to considering maladministration in the way decisions are taken within the NHS. Her main role is in investigating failures in service and matters of clinical judgement.

The complaint must be brought to the ombudsman within one year of the complainant becoming aware of the problem. The time limit can be extended in special circumstances, such as where the NHS complaints procedure took longer than it should have done.
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Which complaints are not eligible?
It is worth noting that quite a large proportion of complaints which are made to the Health Service Ombudsman cannot be accepted for investigation. Last year, between a third and a half of complaints were taken on by the scheme. This is for a range of reasons, including:

the complaint falls outside the ombudsman's remit - in which case it is referred to the appropriate ombudsman if possible
it is premature (it has not yet gone through the NHS complaints procedure)
the ombudsman considers that it should go back to the NHS body for local resolution

Complaints that the ombudsman cannot investigate include those:

which are the subject of court or tribunal proceedings
about private treatment or facilities (unless paid for by the NHS)
about personnel issues
about social services - these should go to the Local Government Ombudsman

From 1st August 2007, the three public sector ombudsmen in England can take on joint investigations of complaints that cover two or more different ombudsmen. This is particularly relevant in cases of continuing care, where the NHS and the local authority are often both involved in the decision about funding. You can approach either the Health Service Ombudsman or the Local Government Ombudsman with your complaint, and they will ask for your permission to involve another ombudsman service if they think it will help with the investigation.
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Complaints about health care in prisons
Complaints about healthcare in public prisons in England should follow the local NHS complaints procedure for the Primary Care Trust providing the care. Where the matter remains unresolved, you can ask for an independent review by the Healthcare Commission. If you remain unhappy with the outcome of a complaint to the Healthcare Commission you can ask the Health Service Ombudsman to look at your complaint. Where complaints include problems with health and other issues in a prison, you can call the ombudsman helpline on 0845 015 4033 to check which ombudsman you should take your complaint to.
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Cost
The scheme is free. Complainants are not expected to incur any costs in making a complaint to the ombudsman, so you can’t claim back any legal costs. The ombudsman can, however, recommend financial compensation for any expenses you have incurred because of faults by the NHS body concerned.
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Timescale
All complainants will hear from the ombudsman within twenty days about whether or not their complaint will be taken on for investigation. In 2007-08, 53% of complaints were dealt with within six months, and 92% within twelve months.
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Making the complaint
Complaints are usually submitted in writing, either in a letter, by email, or on the website form provided by the scheme. If clients prefer, they can call the helpline on 0845 015 4033 and the complaint will be taken over the phone.

The complaint should give all details about the problem, and must show how it resulted in personal hardship or injustice. The complaint must be accompanied by as much evidence as possible. The ombudsman's office will photocopy any originals sent and return them to the complainant.

Note: The complaints form includes a question about whether the complainant intends to take legal action. Complainants would be well advised to tick "no" as their response here, so as not to risk the ombudsman rejecting their complaint on this basis. Although the question is meant to weed out those complaints where actual legal action is taking place (and which because of this the ombudsman is not permitted to investigate), it would be safer to tick "no" even where the complainant is not sure of his or her intentions. The ombudsman's office acknowledges that sometimes a complainant might decide to take legal action after an ombudsman's investigation, where such an investigation has, for example, uncovered new information.

Complainants should get independent advice before making their complaint. The ombudsman is able to consider many serious complaints about clinical judgement where court action for negligence could be an alternative. The ombudsman cannot award large amounts of compensation or damages, but the court can. It is therefore vital for individual complainants to make an informed decision, with the help of an adviser, about the best way to try to resolve their problem, bearing in mind what they want to achieve. If they need significant financial compensation to provide ongoing care, for example, a court application will need to be made.

Independent advice about the first stages of the NHS complaints procedure can be obtained from the Independent Complaints Advocacy Service (ICAS). The helpline numbers for different areas in England can be obtained from the ICAS map on the Department of Health website.

More information on making a complaint to the ombudsman can be found on the Health Service Ombudsman website.
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Getting information about the NHS
The Freedom of Information Act 2000 gives individuals a right to ask for any information that public bodies hold. It also requires public authorities to have publication schemes that make it clear what information is publicly available.
Complaints about refusal to provide information can be taken to the Information Commissioner.
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Procedure
Accepting complaints
Fewer than half of the complaints made to the ombudsman are accepted. This is usually because complaints cannot be taken to the Health Service Ombudsman until the local complaints procedure has been tried. The ombudsman will refer these premature complaints back to the local NHS complaints procedure.

Early resolution of accepted complaints
Not all of the complaints which are accepted are fully investigated and a report issued. This is often because an appropriate response, such as an apology or an explanation, has already been offered through the NHS complaints procedure, and the complainant would not get anything more as a result of an ombudsman investigation. Many complaints which are accepted are therefore resolved informally at an early stage, either because the ombudsman has no further recommendation to make, or because the local NHS body agrees a particular remedy. Some complaints are referred back to the local NHS body with advice from the ombudsman, such as to re-consider a decision not to hold an independent review, to consider a further investigation, or to provide a more detailed explanation. If the complaint is referred back with ombudsman advice, the complainant is told about this and invited to return to the ombudsman if the matter is not resolved to their satisfaction. The usual time limit applies - the complainant must return to the ombudsman within a year.

Investigation
Once a complaint is accepted for full investigation, the body being complained about will be sent a copy of the complaint and asked to comment and send any relevant documents. The complainant will be contacted by someone from the ombudsman’s office to discuss the complaint, and the outcome they wish to achieve.

All documents, including medical records, are kept confidential.

An investigation officer allocated to the case will keep in close touch with both complainants and respondents. The investigation officer will be supported in cases involving clinical care by independent clinical advisers.

The complainant might be interviewed by a member of the ombudsman's staff, and can have a friend accompany him or her to this interview. Other people relevant to the complaint will also be interviewed.

Although these interviews are informal, the ombudsman has the same power as the courts to obtain evidence. This means that even if witnesses are reluctant to be interviewed, they can be required to attend.
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Outcomes
Once the ombudsman has concluded the investigation, the report is sent to both the complainant and the body complained of. If the ombudsman has found the complaint to be justified, the report will state what remedies the ombudsman is recommending. The ombudsman's recommendations are based on reasonableness, equity and common sense, not on strictly legal criteria.

In the year 2007-2008, 38% of complaints were upheld in full, and 11% in part: 51% of complaints were not upheld.

Remedies
Remedies may include:

an apology
an explanation of what went wrong
getting a decision changed
repaying costs incurred by the complainant as a result of the mistake/mishandling
changes in procedure
improvements in facilities
consolatory payments in respect of distress or inconvenience

Financial recompense - such as to cover expenses incurred as a result of faults found - can also be recommended by the ombudsman. It is worth remembering that the ombudsman does not award damages or compensation. If a significant compensation award is vital, you should get some legal advice about taking your case to court.

Once a recommendation is made by the ombudsman, she will check that the hospital, doctor or health service provider has complied.

There is no appeal against the ombudsman's recommendation, but complainants who remain dissatisfied can still take their case to court. If new information comes to light after the report has been issued, the ombudsman can decide to re-open the investigation, but this is rare.

Ombudsman reports
The ombudsman publishes annual reports which give an overview of the cases handled during the year, details of the time taken to deal with complaints, and some examples of the types of cases which have been investigated. The reports name health authorities and trusts involved in the complaints reported on. The reports do not name general practitioners but identify their practices as being in a particular geographical area.

The only time an individual practitioner is identified by name is when he or she has failed to apologise for a shortcoming found by the ombudsman or has failed to implement a recommendation. The first practitioner to be named was a dentist in 1999.

Special reports
The ombudsman also publishes special reports which highlight a particular issue which appears to be of widespread concern. For example, in February 2003 the ombudsman published a special report on NHS funding for long-term care for the elderly. This followed a cluster of complaints about the ways in which health authorities applied their eligibility criteria for full NHS funding for the long-term care of older and disabled people. For her investigation the ombudsman used four test cases. She concluded that mistakes were made and that the Department of Health guidance had not been clear. As well as recommending compensation and apologies in these cases, the report also recommended action for strategic health authorities and the NHS to improve their guidelines. The Health Service Ombudsman website gives information about making local complaints about funding for continuing care, and details of how to take a complaint about this to the ombudsman if it is not resolved. Note that over the last year 85% of complaints on this subject were upheld in full or in part.

Advisers are particularly encouraged to put cases forward to the ombudsman where they represent a general problem which needs investigation.
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October 2008