HEALTHCARE COMMISSION COMPLAINTS CONSULTATION - AIMS' RESPONSE

The Association for Improvements in the Maternity Services has been dealing with parents' complaints about maternity care in the health service for over 40 years.

We are grateful that you are looking into this issue, because for us and our clients it is a crucial matter in assessing quality of care. Responding to complaints honestly and effectively can assist, or hinder recovery. Despite encouragements to be honest and open from the Department of Health, our experience is that the culture has not changed within many Trusts, or it may be that maternity and neonatal units are particularly difficult because the financial implications of litigation can be serious. Whatever governments or regulatory bodies do, professional and institutional cultures are the hardest things to change. It is mighty slow, and we have seen little sign that it has even started. There is a quite unnecessarily defensive and sometimes hostile attitude to complainants (though nowadays it's wrapped in smoother language) leading to restriction of information, and sometimes downright dishonesty.

We cannot emphasise too strongly how much this damages our clients and their families, who need closure in order to begin to recover. This is particularly important in the case of maternity care, where adverse incidents can contribute to both severe and long term postnatal depression and post-traumatic stress disorder.

"Apologies" are still in fact pseudo-apologies which exacerbate anger and distress, and hinder our clients' recovery, and we have an ever-growing collection of them, (e.g. "We are sorry if you feel that your expectations were not met), for example:

A woman was told by the registrar that her only option was to have a caesarean section. She subsequently found out that there were other options available, and complained. The Chief Executive of the London teaching hospital replied: ...'I apologise that you feel that Dr O's non-verbal communication was inappropriate'. In this case the woman received 10 pseudo apologies. There were two real apologies, they were: 'I apologise that the birth plan you brought in with you was missing but subsequently relocated' [conveniently, it was found after the birth] and, 'I apologise for the delay in replying'.

Over and over again it is such responses which provoke legal action by our clients who would never otherwise have considered it.

We are constantly frustrated. Whereas unethical conduct of healthcare professionals can, in some cases, be reported to regulatory bodies like the GMC or the NMC, the ethical conduct of administrative staff is not monitored in the same way. Indeed, those who have done a slick, effective job in colluding to hide the truth, and defend the Trusts who employ them are likely to be the ones who move on and up (or at worst sideways ) to other Trusts and wield even more power. We recall a meeting of the House of Commons Select Committee on the Ombudsman where MPs demanded to know what happened to these people, and found they had usually gone to higher positions elsewhere.

A few, of course have had to appear before the Select Committee and defend performance of the Trust - but those who appear are unlikely to be the guilty parties, who have moved on.

Unless there is a high chance of being detected, and without effective sanctions being in place, this will continue.

KEY ISSUES FOR US

  1. QUALITY OF INVESTIGATION

    It is clear that Trust officials do not know HOW to investigate, and perhaps there is a case for having a peripatetic team of specialists. What executives seem to do is a collating job: get a report from the doctor concerned, or head of midwifery, etc., collate their reports and then do a toned-down and highly edited response to the complainant. There is no sign that they get off their seat and check where call bells are and whether they can be reached, whether the labour rooms are intensely hot without adequate ventilation. (We have had a recent cluster of complaints from women about not being able to find call bells and not being told where they were, when left alone in labour, or not being able to reach them when being left alone after the birth when they were haemorrhaging or had other problems. We had such complaints many years ago - then they stopped. They have re-surfaced since midwives became short and pressures increased.)

    We recall one Ombudsman case where only the Ombudsman's staff checked what was, and was not, visible from the nurses' station in a paediatric ward, but it was a crucial part of the investigation.. This was probably one of those published when Sir William Reid was in post; his case reports (superb teaching material) were the best of them all, and have never been matched.

    When there are two versions of an event - that of the complainant and that of the responding midwife or doctor - Chief Executives respond as if the midwife's statement is fact. They were not present and cannot know which is true. (In fact many incidents were witnessed by one or more relatives and friends or doulas, who back the complainant's story). Instead of responding 'Midwife X did explain to you...' they should say 'Midwife X says she explained to you'.

    A particular type of complaint which Trusts need advice and monitoring on is allegations of sexual misbehaviour. (cf. the recent Kerr/Haslam enquiry) where administrators tend to wish it would go away. This is an area where they really need training. Few abused patients will complain, so other complaints may appear after long intervals, which means that a longer term perspective needs to be taken.

  2. HONESTY OF THE RESPONSE

    What was known but omitted, concealed, or fudged in the response to the complainant?

    There are two further aspects of this. One is that the policy nowadays seems to be that the Chief Executive sends and signs the reply on behalf of the Trust. We recently had a case which was almost entirely to do with behaviour and professional competence of one midwife, but our client was denied a response from the Head of Midwifery - who was responsible for her staff (and, of course, was subject to the NMC Rules and Code of Conduct). The second problem is the complaints procedure denying the complainant information on staff discipline. This is a crucial issue in preventing both satisfaction and closure. What steps have been taken to deal with the incompetent professional? Will that midwife or doctor go on causing complications and psychological trauma to other mothers in future? Without an assurance that something has been done, and what, the client is left in limbo.

  3. COMPLETENESS OF RESPONSE

    Often in responses minor issues are dealt with, more serious issues are often fudged or ignored. A classic example recently was a response from a major London teaching hospital. We analysed the letter our client had sent and it covered over 20 issues. . The Chief Executive response to just 5 points, and each of those was re-phrased by him to misrepresent what she has really said. Although when clients come to us before a letter is written, we suggest numbering their points, even this does not necessarily work.

  4. FAILURE TO COMPLY WITH ACCESS TO HEALTH RECORDS ACT OR FREEDOM OF INFORMATION ACT

    We always advise clients who come to us before lodging a complaint to obtain all their records first, since it helps to see what has been recorded about events which they may wish to challenge. They may also find that they have an additional complaint about the quality or accuracy of the notes themselves. If the complaint is already ongoing, they are still advised to access them.

    Although there have been some improvements from the early days, when requests for records were ignored or met with bewilderment, hospital responses are often better than they were. However the following problems continue:

    1. failure to meet the time limit of 40 days
    2. supplying incomplete records, with crucial data missing
    3. using clauses which allow them to exclude distressing data or third party information without adequate justification
    4. demanding the statutory limit of 50 (even this is hard for many of our clients to manage, especially since information may be held by a number of Trusts), and the maximum charge of 50 is now the "standard charge"
    5. when they request written records, telling them that they may not have them but they may go and look at the files.
    6. particular problems with getting records from health visitors, community psychiatric nurses, physiotherapists etc. There seems to be no knowledge of legal requirements and a lack of procedures in place, and a degree of panic in people who suddenly become aware for the first time that they may be called to account. These records are particularly important in health/social services interface - and social services are even worse than the health service at complying with legislation in this area. We have examples of cases where after 11 months the client still has not received her social services records, and her case is not the only one.
  5. ALTERATION OF RECORDS

    We have had a number of examples of this happening. One client has, at different times obtained three different versions of the same letter! We believe that when a serious complaint is made, the Chief Executive should obtain the file, have it copied, and keep the original in the hospital safe; this was recommended by the late Prof. Brian Abel-Smith many years ago, and it is just as necessary today.

  6. COMMUNICATION FUDGING

    This is the big dustbin category Chief Executives resort to when faced with a sticky complaint. "There seem to have been communication errors" is something they will admit to, yet under this heading comes a ragbag of complaints including poor clinical care, unacceptable and even dangerous staff attitudes and behaviour, failure to gain consent or accept refusal, leading to actions which are in fact assault on women in labour and so on.

  7. DEFENSIVE ATTACK AS RESPONSE

    We have now seen so many cases that we are convinced that unjustified allegations to social services so that they will intervene on child protection grounds are being used more and more by health care personnel (paediatricians, midwives, obstetricians and health visitors) against any mother who complains, queries the pattern of care, looks as if she might complain, or is otherwise seen as less than totally compliant. THIS HAS NOW BECOME THE MAJOR ISSUE FOR US, and it is one we have to warn our clients about continually.
    We beg you to look out for this.

ASSESSING QUALITY

We suggest that monitoring the above points will help in assessing quality. Information should be coming in constantly as the Commission deals with complaints appeals. A Trust may be better at responding to some complaints but not others. As we have already pointed out, maternity and neonatal care may be areas where they are worse at responses than in other aspects of clinical care - but minor complaints, or parts of serious complaints which are minor, may be dealt with well. Secondly, the Chief Executive will base his or her response on reports received from those directly involved - who will vary in the style and content of replies. This means that overall assessment "X% were satisfactory and Y% were not" is too simplistic. It has to get down to the nitty gritty of exactly what aspects are being failed, and why. It has to be qualitative rather than numerical. We know both from our daily contacts, and from the Confidential Enquiries into Maternal Deaths, that some groups are discriminated against (e.g. travellers) and suffer a higher risk of avoidable death or injury from negligence and the Director of CEMACH, Dr. Gwyneth Lewis, was shocked at the pejorative comments on their notes. If we are to protect them - and most will not complain - we have to change the culture. Published surveys of Asian women have shown a number of instances of getting worse care than white women receiving care at the same time in the same units. Having assisted some women from Asian families to complain, we have been appalled at the cultural ignorance of staff, and the erroneous assumptions made about them. One articulate and educated woman was reported to social services as a danger to her children after she had made a legitimate complaint, and false charges were made about her.

BURDEN OF ASSESSING COMPLAINTS

What everyone has to realise is that responding to complaints BADLY is expensive. It is indeed an "undue burden" on the community. It also shows the organization has failed to learn valuable lessons for improving quality and safety. Complaints drag on and on. It is true that only a minority of complainants will write in the first place, and some will be too exhausted to continue. We cannot stress too highly how distressing and debilitating these long drawn out battles are for complainants. We believe that to do some high quality assessment of performance would be money well-spent.

For us, failures of integrity, failures to investigate, are always serious quality issues even if they do not affect the entire organization. The message must get across that unethical behaviour is unacceptable.

Association for Improvements in the Maternity Services
16th September, 2005

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