The Department of Health has told NHS bodies they cannot ignore complaints simply because legal proceedings are under way.
The new guidance has been agreed after patients’ charity Action against Medical Accidents (AvMA) threatened health secretary Jeremy Hunt with a judicial review unless it was changed.
The DoH had issued guidance in 2009 compelling NHS bodies to investigate complaints, but the wording was felt to be unclear.
In a letter to the department, AvMA said it had identified a ‘significant and persistent problem’ with NHS trusts halting or abandoning investigations into complaints once there was any indication that legal action is a possibility.
In its legal challenge, the charity argued patients have a statutory right to have their complaints investigated and it was unlawful to halt them when legal action is taken.
In a letter to AvMA, the DoH made it clear the 2009 guidance will be tightened to close any loopholes. Once the wording is agreed the new clarification note will replace the previous guidance.
A spokesman for the DoH said: ‘We expect the NHS to respond to all complaints raised. In exceptional circumstances it may be appropriate for a complaint to be put on hold, but only when a discussion concerning the timing and handling of the complaint between the organisation and the complainant has taken place.’
Peter Walsh, chief executive of AvMA, said he welcomed the DoH stance but regretted that it took the threat of a judicial review to achieve it.
‘The practice of some NHS trusts has been totally unacceptable – seemingly designed to hide facts that may assist a claimant or deter claims – and totally contrary to stated policy. This is one more step towards a genuine duty of candour.’
Before April 2009, where a complaint was received and where the complainant had indicated in writing that they were intending to take legal proceedings, the complaint was excluded from the NHS complaints arrangements.
In 2009, the DoH removed this regulation because it considered there should be no direct link between responding to a complaint and consideration of litigation.
In some cases, it will be appropriate for the complaint to be put on hold, but that should be an exception and should follow discussion concerning the timing and handling of the complaint between a health body and the complainant.