It was with absolute horror that I read the new complaints policy which has come into force at the hospital that cared for my daughter Jasmine this year. Written by the Legal Services, Complaints and PALS manager (the same person holds all 3 titles) the policy sets out that...
"If the complainant has either instigated formal legal action or notified the Trust in writing that he or she intends to do so, the Senior Complaints Officer should seek the advice of the Trust's Legal Services Department. If it is considered that the complaint investigation would prejudice the legal claim, the complaint should be stopped. The complainant will be notified in writing on this decision as necessary"
I wondered once I'd read this how many other NHS trusts up and down the country also apply this rule to the complaints process?
Wasn't the point of the Duty of Candour to be open and honest with patients when things go wrong. To inform patients about things that have gone wrong with their care which have or 'could' have resulted in harm?
As I understand it, in order to successfully win a legal claim for clinical negligence, you have to prove that there was a breach of duty (the care was unreasonable) but you also have to prove that the substandard care contributed to/caused injury.
If a trust believes answering somebody's complaint or concern about their care could prejudice a legal claim, my interpretation is that the trust is worried investigating a complaint thoroughly and being fully open and honest about its findings could make it more difficult for them to successfully defend a legal claim.
Well then that could only mean one thing, that the trust thinks the complaint might uncover a failure in care and are concerned it could be proven to have caused or contributed to the injury of a patient.
Trusts like this one clearly still believe that if an honest complaint response might reduce their ability to deny liability in a legal claim this is a perfectly good reason to close the complaint.
Is it a justifiable reason to close a complaint?
If so, can somebody explain the Duty of Candour to me once more please?
1st October 2015