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Legal action planned to ensure hospitals can’t ignore patients making a complaint about hospital treatment

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    The charity AvMA (Action against Medical Accidents) threatens legal action over loop-hole which allows hospital trusts to refuse to consider complaints from patients.

    By Ali Cloak

Current NHS guidance says that hospitals can refuse to consider a complaint if the relative or patient is potentially considering legal action in the future.  The theory behind this is that the two systems have different purposes, with the purpose of the NHS Complaints procedure being for a patient to get answers about the medical treatment they have received and to seek changes to hospital practice to avoid future errors, rather than to seek financial compensation for injuries they have suffered.

AvMA is the UK charity for patient safety and justice. This week, the charity has threatened legal action in a letter to Jeremy Hunt, Secretary of State for Health, on the basis that guidance on complaints has not been updated despite agreement being reached several years ago that the existing rules were inadequate and that taking legal action should not be a bar to making a complaint about hospital treatment.

PRESENT GUIDANCE ON DEALING WITH COMPLAINTS

The guidance effectively provides hospitals with a means by which they could lawfully decline to investigate the treatment being complained of if the patient is considering legal action.  Campaigners highlighted that often an open and frank investigation at the outset can prevent litigation, whereas withholding information would only increase suspicion and the desire to litigate. The rules were due to be revised back in 2009. However the rules remain unchanged to date, sparking AvMA’s action. They have now issued a legal letter warning of their intention to seek a judicial review in the High Court if the advice is not changed.

Peter Walsh, AvMA Chief Executive, has confirmed that the charity has taken legal advice that the guidance is unlawful in its current form, as well as being contrary to the NHS complaints policy which expressly states that complaints process should only be halted if likely to prejudice court proceedings.

DUTY OF CANDOUR

This issue is particularly relevant now following a spate of media coverage showing that some Trusts and health organisations deliberately covering up their actions, such as the Mid Staffordshire scandal.  Ministers have vowed to implement a ‘duty of candour’ which would impose a legal requirement for healthcare providers to be open and honest with patients or their next of kin when harm has been caused.

Jeremy Hunt, Health Secretary, said that “it is in the interests of everyone who cares about the NHS – from patients, to doctors and nurses – that patients can trust that when they make a complaint, it is dealt with correctly and thoroughly.”

OUR EXPERIENCE

The Clinical Negligence Team are keen to support this campaign for greater transparency and accountability, which we feel is vital if patients and families are to have their concerns addressed in a meaningful way. We are often told by our clients that having answers about what happened during their medical treatment is vital to them, yet there appears to be a trend towards avoiding dealing with complaints wherever possible, leaving litigation as the only option.  A big element of this comes from the Trusts having to investigate complaints, even where legal action may be contemplated at a later date which would ensure many more patients have their questions answered at as early a stage as possible.

If you do wish to consider legal action for negligent hospital treatment then one of our specialist medical negligence solicitors would be happy to speak with you.

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