COMPLAINTS AND REPRESENTATIONS ABOUT POLICY AND LEGAL ACTION FOR ALLEGED MEDICAL NEGLIGENCE – PART 2
The information in this thread was set up on the old Forum under “Complaints and representations etc”. The old Forum has been archived so that the thread is now available as “Read only”. It will not be reviewed and should not be used. I have reproduced the information here as “Complaints and representations etc Part 2 ”. The original posting is at the link below.
There are numerous personal situations in which a man may feel it is right to complain about the treatment he has received under the NHS for prostate cancer. This note is not about the issues of awareness of prostate cancer or the arrangements for PSA testing. It is not about the detail of whether or not your GP has given you wrong or misleading advice or whether hospital procedures and treatment options were wrong. The note is about what you can do if you are not happy with the NHS care you have received.
Information about sorting out complaints with GPs and hospitals is scattered around the board. I thought it would be useful to put something together to have the most relevant options and contact points in one place. There is nothing prescriptive about anything in this note which is no more than a reference point.
Section 2 deals with complaints against your local NHS. The obvious starting point to sort out a problem is to do this locally by raising it with your GP or your medical team at the hospital.
If this fails to resolve the problem you can then make a complaint to your Clinical Commissioning Group (CCG) or hospital trust. Involving your MP to help you is also an option. All of this can be followed up with a complaint to the independent Health Service Ombudsman.
If you are still dissatisfied you can seek a judicial review.
Section 3 deals with raising a question of policy or procedure with the Department of Health. There are some personal observations in this section which have worked for me and I hope they are helpful for you.
Section 4 deals with taking legal action against a doctor or hospital when you think you have been harmed by their professional actions. I think this option will be used very exceptionally but if you wish to consider legal action this section will give you an idea of what this could involve before you approach a solicitor.
The information in this note concerns the NHS in England and there may be different rules for Scotland, Wales and Northern Ireland.
This note is not an authoritative statement of your rights under either the NHS rules or civil law.
2. COMPLAINTS AGAINST YOUR CLINICAL COMMISSIONING GROUP
OR HOSPITAL TRUST
2.1 NHS Constitution
Your rights to NHS care and services are set out in the revised NHS Constitution in the 2nd link below. These were published in March 2013 to cover the new NHS arrangements which started on 1 April 2013.
If you have a complaint about the care you have received from the NHS the NHS Constitution and related documents set out the principles of the complaints procedure.
“NHS Constitution for England”
“NHS Complaints Guidance”
This is on the Gov .UK website and amongst other things it gives contacts for complaints about primary care and complaints about secondary care.
If you feel that your problem has not been dealt with properly locally you can take your complaint to the independent Health Service Ombudsman. If you are still dissatisfied and consider that you have been affected by an “… unlawful act or decision by an NHS body…” the next step is to seek a judicial review of the issue. Compensation may be paid if it is decided following either the NHS complaints procedure or a court decision that you have been harmed by negligent treatment.
2.2 The NHS IN England
Information is also available on the NHS Choices website under “The NHS IN England” at the link below.
2.3 Parliamentary and Health Service Ombudsman
The independent Health Service Ombudsman will deal with complaints that the Department of Health has provided a poor service or not acted properly. At present complaints to the Health Service Ombudsman must be made through the patient’s MP. This procedure is under review and direct access to the Ombudsman may be possible in future.
2.4 Guidelines for GP counselling about prostate cancer and the PSA test or a referral to a hospital for investigations
If you are dissatisfied with your GP you need to know what standard of care you should expect on counselling about the risks and harms from prostate cancer and about of having a PSA test. Similarly, you also need to know about the guidelines for a referral to hospital for further investigations. You need to know about this to help you decide whether or not to make a complaint about your NHS experience with your GP.
For asymptomatic men (not presenting symptoms) the guidance for GPs about advising men about prostate cancer and offering a PSA test is in the Prostate Cancer Risk Management Programme (PCRMP). Previously you could see this information on the NHS Cancer Screening Programmes website but that was closed down on 31 October 2015. The information previously on the old website can now be seen on the gov.uk website at the link below.
The guidance for GPs and men in the “PCRMP Guide No 2” and the patient information in “PSA (prostate specific antigen) testing for prostate cancer” still applies but it is presently under review.
The guidance for GPs in the PCRMP information pack sets out “best practice” for counselling men about prostate cancer and the PSA test. However, GPs can use their knowledge of prostate cancer and clinical judgement on how to advise a patient. This could result in a GP not providing full and proper information or not offering to do a PSA test. Challenging a doctor’s clinical judgement because you think it has fallen short of professional standards may be difficult as explained in Section 4.2 “Legal action”.
From 1 April 2013 the NHS Cancer Screening Programmes became part of Public Health England.
For men presenting symptoms,the starting point is the guidance to GPs from the National Institute for Health and Care Excellence (NICE); their website is at the first link below. The “Referral for suspected cancer: NICE guideline” is in Clinical Guideline 27 which is at the second link below; prostate cancer is on page 28.
Similar guidance has been issued by The National Collaborating Centre for Primary Care (NCC-PC) at the third link below. The link is to “Referral Guidelines for Suspected Cancer in Adults and Children” - see Section 4.8 on page 71 for prostate cancer. This guidance duplicates the NICE guidance for the most part but it is endorsed by the Royal College of General Practitioners.
2.5 Guidance for hospital treatment for prostate cancer
NICE have produced guidance for the diagnosis and treatment of prostate cancer which you can find at the link below. The full guidance is a lengthy document which you can see at:
There is a shorter version of the latest guidance published as “Prostate cancer: diagnosis and treatment January 2014 NICE clinical guideline”. See below.
The treatment plan offered to you will depend on your diagnosis and related scans and tests and how these are interpreted by your hospital team. The treatment offered to you may depend on where you are being treated. For example, the treatments offered may vary depending on whether you are under the care of a district hospital, a larger hospital, a “centre of excellence” or a hospital linked to research projects.
I have mentioned the different approaches to treatment because variations may occur depending on the experience of your hospital medical team. There are postings on the board showing differences in treatment plans and periods of treatment for what looks like the same diagnosis. You may be offered treatment which you feel is less effective or timely than that received elsewhere by other men. If so that does not necessarily mean that your treatment plan is not right for you. In these circumstances you have the option of seeking a second opinion and your GP can arrange this for you.
2.6 Getting a second opinion
Information on how to get a second medical opinion is provided in the link below.
2.7 Dissatisfied with your GP or hospital medical team?
Individual experiences leading to dissatisfaction or a complaint against the NHS appear on the Message Board from time to time. You may be unhappy with the care provided by your GP before or after a prostate cancer diagnosis and think the guidelines in Section 2.4 were not followed. You may also be unhappy with the way you are or were treated at the hospital either before or after diagnosis and think that the guidelines in Section 2.5 have not been followed.
As already mentioned if you are not satisfied with your treatment then, clearly, the quickest way to resolve a problem is directly with your GP or your hospital medical team, as appropriate. If you are not satisfied with your hospital treatment then speaking to your Clinical Nurse Specialist is a good idea.
If this informal contact with your GP or your hospital team fails to resolve the problem you can make an official complaint by contacting your CCG or the hospital trust. There are organisations which will help you to obtain information or to raise a complaint.
Somewhere along the way involving your MP is also an option.
For information about the NHS complaints procedures see the link below.
2.8 Patient Advice and Liaison Service
The Patient Advice and Liaison Service (PALS) helps patients to raise and sort out problems with their PCT or hospital trust. See the link below.
2.9 The Independent Complaints Advocacy Service
The ICAS, which was a source of help with making a complaint, was abolished on1 April 2013.
2.10 Independent Advocacy Service
From 1 April 2013 arrangements for an advocacy service may be different between CCGs because local authorities have a duty to set up independent advocacy services within their area. Speak to your local PALS team to find out who is providing the NHS independent advocacy service in your area. In my area the contract for providing advocacy services has been given to the same organisation which provided this service under the previous Independent Complaints Advocacy Service.
2.11 Care Quality Commission
The Care Quality Commission is the health and social care regulator for England. They look after the interests of patients and aim to improve care in the home and hospital. – see the link below.
2.12 Healthwatch England and Local Healthwatch
Rather than set out here how Healthwatch England and the Local Healthwatch in your area safeguard the interests of patients have a look at the link below.
2.13 National Patient Safety Agency
The National Patient Safety Office has a number of roles and aims to improve patient care.
2.14 General Medical Council
The General Medical Council’s website at the link below provides information about making a complaint against a doctor.
2.15 Independent Healthcare Advisory Services
The Independent Healthcare Advisory Services (IHAS) regulates its members who are in the private sector.In the link below click on "How to raise a complaint" for information.
3. REPRESENTATIONS TO OFFICIALS ABOUT POLICIES OR PROCEDURES
From 1 April 2013 the Department of Health is no longer the HQ of the NHS nor does it manage any NHS organisations in the new set up. However, the Department of Health retains responsibility for health policy and certain strategic elements of a number of national health organisations. For more information have a look at the link below.
What follows is one view on how to go about making a representation to the Department of Health or to one of their policy groups on prostate cancer issues. Many of you may know about this but there will be others who don’t so I hope this is helpful for those men.
When contacting officials everyone hopes that their letter will bring a helpful and encouraging response. I can tell you from experience that it is important not to give officials an easy ride. This is based on many years as a civil servant (no apologies for this!) and having been involved with domestic and international administration and policy, including international treaty negotiations. This was followed by 8 years as an International Social Security Consultant working for the London office of one of the biggest accountants and business advisory firms in the country (gamekeeper turned poacher comes to mind).
When making representations to officials it is best to avoid simply making general comments or statements on the issues involved. Lack of detail about your concerns, or the consequences from them, will give officials an easy option to respond with minimal detail and not address the points which you have raised.
To make the most of your submission to officials you need to get it right first time. This means making sure that you understand the relevant policy issues and background which you wish to question.
Set out in detail the Department of Health’s policy position or procedure which you wish to question and tell officials why it is wrong or not working. Ask questions about what they intend to do to put things right, or why they cannot or will not put things right. Doing this helps to draw out the information you are looking for. An option is to add or repeat detailed questions at the end of each section of your letter or at the end to focus officials on what you want to know.
It is worth remembering that the policy for some of the issues with prostate cancer are influenced by worldwide research and clinical practice, clinical opinions and consultations. This is coupled with advice and research from the Government’s own advisory teams so a quick fix is not generally an option for officials.
That said, I am the first to say that these tactics do not always work. Sometimes even if detailed questions are asked and policy is questioned in depth some of the questions may be avoided very easily so a reply may still be less than helpful.
It is doubtful whether officials will change their mind after replying to your letter. If you are not happy with the reply because you think it is wrong or does not answer your questions you do not have to accept their reply without comment. You can go back to officials with further comment to reinforce the case you made earlier. It is very doubtful if this will change anything but your further comments will be on file and, who knows, they may be picked up later.
You can write directly to the Minister for Care Services at the Department of Health or you can do so via your MP. If you make contact via your MP it is generally best to set out the facts of your problem in a separate letter and ask your MP to forward it to the Minister.
Contact points for the Department of Health, including their Customer Services Team, are in the link below.
You can find out how to contact your MP by going to the link below and entering your postcode in the section “Members of the House of Commons”
4. LEGAL ACTION FOLLOWING ALLEGED MEDICAL NEGLIGENCE
4.1 NHS Litigation Authority
The NHS Litigation Authority (NHSLA) deals with negligence claims. Their website is at the link below. On the Home page click on “Current Activity” then “Information for Patients” to see an explanation of how medical negligence is considered. There is a link there to the charity Action Against Medical Accidents (AvMA).
4.2 Legal action
I hesitated about including this section on legal action. However, as the note deals with complaints and the ultimate way of seeking redress for a complaint is to take legal action I have included this section. It is worth making it clear again that this section is for general information. The information is not a substitute for speaking to a solicitor or another qualified advisor if you are thinking about taking the legal route.
When considering legal action for harm caused by the negligence of healthcare professionals it is not enough to look at the clinical guidance for doctors and then simply conclude that the guidance has not been followed. By doing that you may conclude, rightly or wrongly, that you have a valid claim for negligence if you think you have been injured or harmed.
Two conditions need to be satisfied to prove negligence. First, the medical profession, like other professions, works to professional standards. When you are considering whether or not a doctor’s clinical judgement fell short of accepted standards this is not a simple comparison of the care or treatment provide against the published guidelines. A key question is would the doctor or healthcare professional be supported in what they did by a significant or responsible body of clinical opinion of his or her peers. For example, taking account of any clinical guidance would a number of other doctors have provided the same care, or lack of it, as your doctor did? If so, then it is possible that your doctor’s actions may be considered as not falling short of professional standards.
The second condition is that the harm for which the negligence claim is made must be the result of the doctor or health professional providing care which does not meet the appropriate standards.
This is a difficult legal area and this rather superficial assessment may not do justice to the finer points of any dispute.
4.3 What if a GP has refused to do a PSA test?
I am not sure how difficult it would be to succeed in a claim that your GP was wrong in not doing a PSA test on request prior to prostate cancer being diagnosed at a more advanced stage at a later date. Very much depends on your circumstances. If your doctor can show that a significant body of GPs would not have carried out a PSA test in similar circumstances then it seems to me that your GP may have exercised clinical judgement in a way which may be considered as acceptable.
You just have to look at the survey carried out for the Charity in March 2010 which showed that three out of four GPs in the survey were unaware of the PCRMP to realise that this is a problem area for some men. It may not be too difficult in the present circumstances for a GP’s legal team to show that the doctor acted properly taking account of how many GPs are not aware of the PCRMP.
4.4 Financial consequences from legal action
In law every action has a consequence and disputing the clinical practice of a professional person through litigation can lead to an unpredictable legal and financial minefield. However strong an individual feels about starting litigation there may be a defence lurking somewhere for the other party based on “clinical judgement”. If so this may be backed up by professional bodies and professional indemnity insurance.
There are practicalities to overcome and there are possible financial consequences from this. In general terms, if someone initiates legal action (the plaintiff) and loses their case they would pay their own costs unless they had a “no win - no fee” arrangement. Losing the case, for whatever reason, could result in the person who initiated the litigation picking up the other party’s defence costs. Also, what happens next very much depends on the circumstances, and the strength of feeling of the other party and their advisors. The “loser” could also be faced with a claim for damages for loss of professional reputation, or whatever, by the other party; further financial consequences could arise from this.
Any further action depends on how the other party who has their costs awarded against you, or an award for damages against you, then wishes to proceed. You may be the target for debt recovery action through the County Court or the High Court. This could lead to recovery procedures against you as the “judgement debtor”. Without going into too much detail, court orders such as a Freezing Injunction on bank accounts, a Charging Order on property and a Third Party Debt Order to recover money from banks accounts all come to mind. Being involved in such actions means that further costs can build up. All of these court procedures are options for the winning party to recover a debt. However, the amount of the debt will generally dictate which course of action is taken, if any. These scenarios may never develop but I think you need to be aware of them.
I have to repeat that everything in this section must be seen as general background information which, hopefully, will give you something to think about regarding the legal issues. This background and possible consequences must be understood sooner rather than later. If it is not then there may be financial surprises along the way if you become involved in legal action against a GP, or any other clinician or official body.
Nothing in this note replaces the need for proper legal advice about the law on medical negligence.
I hope this background note with contact points is useful, especially for newcomers to the board whether or not they choose to post.