Alternatives to Litigation: The NHS Complaints Procedure

Should I Make a Complaint?

Making a complaint, using the NHS Complaints Procedure, can be a constructive way of dealing with your concerns.  There are things that you are more likely to achieve by making a formal complaint than by following other ways of pursuing your dispute.  You should definitely consider the NHS Complaints Procedure if your primary aim is:

  • To get a straightforward, open explanation of what went wrong in your treatment; and/or
  • To get a simple apology for what went wrong; and/or
  • To ensure that measures are put in place to prevent a repetition of your experience; and/or
  • To register your dissatisfaction about a particular incident without ruining your relationship with your doctor; and/or
  • To have your concerns dealt with as quickly as possible.

On the other hand, there are many things that you will find very difficult to achieve by following the NHS Complaints Procedure.  It is probably not appropriate to follow the complaints route if your primary aim is:

  • To obtain financial compensation for the way in which you have suffered due to a medical mistake; and/or
  • To seek disciplinary proceedings against clinician(s) who have made a mistake; and/or
  • To obtain maximum publicity for the story of your treatment; and/or
  • To have your case assessed in a completely independent way from the outset.

You need to give careful consideration to what it is you want to achieve, in the short- and long-term.  A formal complaint should not be seen as a preliminary step to be attempted before you take other forms of action (especially a legal claim: see below).  That said, if you do end up pursuing your case in other ways, certain organisations will be keen to know that you tried to resolve your dispute via the NHS Complaints Procedure, first.  For example, the Legal Services Commission likes to see that the Complaints Procedure has been followed (or, at least, considered) before it will grant Public Funding ("Legal Aid") for a legal claim.  The General Medical Council, too, finds it helpful to consider the responses you have received to a complaint before it will commence disciplinary proceedings against a doctor (see our GMC page).

The NHS Complaints Procedure and Legal Action

One very important thing to bear in mind is that you are not allowed to pursue an NHS complaint if you are taking - or planning to take - legal action in respect of the incident that would be the subject of your complaint.  This rule, which applies at all stages of the NHS Complaints Procedure, protects NHS organisations who might otherwise say things that might be used against them in Court and, by the same token, encourages openness and honesty in NHS organisations who are not the subject of a legal claim.  If the organisation about which you are complaining learns that you are commencing - or even investigating - legal proceedings against them (for example, if they receive a request for your medical records from a solicitor), they are entitled to discontinue their work on your complaint.  They will no longer be bound by their responsibility to deal with and respond to your concerns.

You do not have to give a guarantee that you will not take legal action in order for your complaint to be considered; however, you are likely to be asked whether it is something you are contemplating (and you may well have to sign a form that includes this question).  If you can honestly answer that you are approaching your complaint with an open mind, there is no reason why your concerns should not be investigated, even if you end up considering legal action at the conclusion of the investigation.  However, you must not think of the NHS Complaints Procedure as a free fact-finding exercise in preparation for a legal claim.  If you think you are likely to launch legal proceedings, you must withdraw your complaint, and pursue that course of action, instead.

One last thing that is worth pointing out, in this regard, is that following the NHS Complaints Procedure while secretly contemplating legal proceedings can make life difficult for your solicitor, in the long run.  One reason for this is that there are strict time-limits governing the commencement of legal proceedings (see our separate page on Making a Clinical Negligence Claim).  If you waste time pursuing a complaint when you already know that you are likely to bring a legal claim, your solicitor's investigations will be held up, and your claim can suffer as a result.