How we handle complaints

The Jurisdiction Test.

We firstly need to be sure that the complaint concerns a health and social care service provider which falls within the Regulations, and that it is about a matter related to the care or treatment of a patient or service user.

• A complaint about Manx Care, or a service funded by Manx Care and provided by another provider under a commissioning contract would fall within our jurisdiction
  
  
• A complaint about privately arranged healthcare or matters wholly unrelated to Isle of Man Government funded health or social care are outside our jurisdiction

The Eligibility Test.

The Regulations make clear that patients and service users can request a review of their complaint, as can people who have been directly affected by a decision, action or inaction of a health or social care provider. A complaint can also be made on behalf of a patient or service user where their expressed authority for a representative to act for them has been clearly given. In the case of children and vulnerable persons, we do have the power to deny eligibility where it is believed that the representative is not acting in the best interests of the patient or service user.

• Relatives and people with a sufficient interest in the affairs of a patient or service user are examples of persons who may fall within the definition of being 'affected'
  
  
• An employee of a health and social care provider complaining about matters related to their contract of employment would not be eligible for a review

The Regulations require us to consider whether or not the complaint has been made to HSCOB in good time. A complaint about a health or social care provider should be made to us not later than 12 months after the date you became aware of the matter of dissatisfaction, or no more than 6 months after having received a decision in writing from the health or social care provider. However, we do have the power in exceptional circumstances to remove the time bar rules, and will carefully consider the merits of individual circumstances on a case by case basis.

• Where ill health, bereavement or another substantial reason is demonstrated as being the cause of the delay, we will normally use our discretion to accept the complaint
  
  
• However, where the passage of time is significant, we will carefully consider whether it is practical to conduct a review given all the known circumstances of the complaint

The Regulations require us to consider whether or not we are the most appropriate body or process for considering the complaint. There may be alternative ways in which you can obtain remedy and redress, such as a court or tribunal hearing of the matter.

• We will not normally consider a matter that has previously been the subject of a court decision or where a settlement has been reached through legal action
  
  
• Some health and social care matters, such as a disputed decision concerning detention under mental health legislation, are considered by a tribunal hearing

We will also consider your desired outcomes concerning a resolution of the complaint, and the views of the relevant health or social care provider.

• We have no powers to make a health or social care provider dismiss a member of staff or take disciplinary action, these are matters for the body in question to decide
  
  
• We have no powers to recommend compensation, and complainants seeking a financial settlement will need to consider pursuing a claim through legal action

We will also carefully consider whether any resolution already proposed by the health or social care provider at the local level is fair and reasonable in all the circumstances.

• Where we are of the view that appropriate action has already been taken in response to a complaint, we will not normally conduct a review
  
  
• In circumstances where we believe a local resolution is still possible, we will use our powers of review to identify potential solutions for a settlement

The Prematurity Test.

The Regulations make clear that patients, service users and other eligible persons are expected to complete the local complaints procedure Manx Care Advice and Liaison Service (MCALS) before referring their complaint for an independent review by HSCOB. If you are unsure, MCALS may be able to assist. The responsibility for investigating complaints rests with health and social care providers, and our primary role is to review how a complaint has been handled and to decide whether the outcome is reasonable and fair.

We can also accept a complaint for review in circumstances where an investigation by a health or social care provider has not been completed within 3 months of the complaint being made, but before doing so we will always look into whether a response is imminent or if the delay can be reasonably justified.

We may also accept a complaint for review in instances where the health or social care provider has rejected the complaint on the grounds that it has been made out of time, or where it has been decided that the matter did not require investigation. Again, we will consider all the available facts and will always encourage Local Resolution where it is possible and reasonable to do so.

• Where there is clear evidence of a proper consideration of a complaint in the form of an investigation report and final response, the prematurity test will usually have been met
  
  
• The rejection of a complaint by a health or social care provider will not result in a review unless we assess the decision to have been unreasonable in all the known circumstances

In some instances, it may not be possible for us to make an immediate decision on whether or not a complaint has been fully investigated by the health or social care provider, or indeed whether the complaint has completed the local complaints procedure.

Where this is the case, we will contact the provider and request access to the relevant complaints records. The provider will ask for your consent to disclose this information to HSCOB as they are legally responsible for the storage and processing of all personal data held by them. Where necessary, we may also contact the complainant for additional information.

We will only seek your permission to access any relevant medical records when it is clear that the complaint is ‘Fit for HSCOB’ and it is accepted by us for review. This ensures that we act proportionately where the use of your personal data is concerned, and that we only hold information necessary for the immediate purposes required.

Finally, we will consider whether a review by HSCOB is likely to result in a materially different outcome to that already achieved, and whether the complaint highlights a matter for which a review would be in the wider public interest.

• Where we take the view that a health and social care provider has taken all appropriate action to resolve a complaint, we will not normally conduct a review
  
  
• Where a complaint highlights an issue of such importance that the wider public interest would be served by conducting a review, it will be accepted

We will always give regard to the particular facts of a complaint and take into account the individual needs and circumstances of the complainant. In exceptional circumstances, we will use our discretionary powers to accept a complaint where one or more of the ‘Fit for HSCOB’ tests have not been met, but where the public interest would be served by conducting a review.

Once we have completed a ‘Fit for HSCOB’ assessment of your complaint, we will write and inform you whether or not the complaint has been accepted for review. The following are the most likely outcomes:

• We will be taking no further action
  
  
• We will refer the complaint back to the service provider for the Local Resolution process to be completed
  
  
• We have accepted the complaint for review
  
  
• We have decided to refer the complaint to a health or social care regulatory body or another appropriate agency

We will give reasons for our decision, and if your complaint has been accepted for review, we will advise you of next steps and the likely time frame for completing our inquiries. If we have not accepted your complaint, we will advise you of alternative routes for pursuing your concerns where they exist.

The Decision Notice will normally be sent within 20 working days of the complaint being referred to HSCOB, although the complaints regulations do make provision for it to be sent “as soon as is reasonably practical” and by no later than 80 working days from the date of receipt. How quickly a Decision Notice is issued will depend on the nature of each complaint, its complexity and how quickly we can access any required information.

The statutory responsibility for investigating complaints rests with health and social care providers. Consequently, and in the majority of cases, a HSCOB review will primarily focus on a consideration of the investigation already undertaken, the outcome and any action taken in response to the complaint. In this way, we not only review how the complaint was handled, but also whether the decision of the health or social care provider was a reasonable one in all the known circumstances.

We will only conduct an investigation of our own where we have a significant concern about the local complaint handling arrangements, the reasonability of the provider’s decision and/or action in the matter, or where it is necessary for the purposes of establishing important matters of fact.

Once we have accepted your complaint for review, the provider will seek your consent for HSCOB to access any medical records or other personal data. We will only access material that is directly relevant to your complaint and observe the general principles of privacy and confidentiality. Our Decision Notice will set out how we propose to review your complaint.

Your complaint will be allocated to two or more HSCOB members who will conduct the review and subsequently prepare a report setting out their findings, conclusions and recommendations. The report will then be forwarded to the Chairman for their adjudication (final decision).

Where HSCOB undertakes an investigation of its own, or where a review identifies additional information or an anomaly that requires clarification, a draft version of the proposed report (minus any conclusions/recommendations) will be issued to the complainant and relevant provider for comment. Following consultation, a final version of the report will be forwarded to the Chairman for adjudication.

The outcome of the HSCOB review will be formally communicated to you in writing, or (where more appropriate) additionally through a meeting with you. We will also communicate our decision to the health and social care provider and any other relevant stakeholders.

The Regulations do not prescribe a time frame for HSCOB to complete a review, although as an organisation we aspire to complete our inquiries within a reasonable period of time. This will generally be not later than 6 months from when we receive your complaint.

HSCOB conducts its reviews consistent with the Principles of Good Complaint Handling advocated by the Ombudsman Association and with regard to current investigative best practice. We take a proportionate approach to our inquiries and focus on the specific issues of dissatisfaction highlighted by the complaint. We will only broaden our inquiries where it is in the public interest to do so.

Where a complaint has already been investigated and a response provided, our review will be primarily concerned with the quality of the local complaint handling and the decision reached regarding the substantive matter of complaint. We will consider all the available documentation and any other relevant evidence in order to reach a view on:

• Was the complaint handled well?
  
  
• Was there an effective investigation of the complaint?
  
  
• Has the local response clearly indicated whether the complaint has been upheld or not?
  
  
• Is the decision of the health or social care provider fair and reasonable?
  
  
• Have any recommendations and action plan commitments been implemented?
  
  
• Has any service failure, detriment or injustice been adequately remedied and appropriate redress provided?
  
  
• Has the provider learnt any lessons from the complaint and have they been added into their service improvement plan?

Where necessary, we may conduct additional inquiries of our own to clarify any matters, and this may involve:

• Access to additional local information and records
  
  
• Discussions with persons involved in the complaint
  
  
• Research into any relevant legislation, regulations, policy, procedure and best practice guidance
  
  
• In exceptional circumstances, the commissioning of independent specialist opinion or expert advice

All of the information gathered will then be brought together to produce a report detailing our findings, conclusions and any recommendations concerning your complaint. This is the most common form of review and uses readily available information to reach a decision on the complaint.

We may sometimes use our discretionary powers to conduct an investigation of our own. However, such inquiries are an exception in order to uphold the general principle that health and social care providers are statutorily responsible for the investigation of complaints. Each case will be considered on its merits, but the following are indicative examples of circumstances where we may conduct our own investigation:

• There is a concern about the fitness of the local complaint handling arrangements to properly consider the complaint
  
  
• The complaint has been unreasonably rejected by the provider on ‘time bar’ grounds
  
  
• The complaint has been rejected by the provider for other procedural reasons
  
  
• The complainant is a vulnerable person
  
  
• The complaint concerns ‘end of life’ care and timeliness is required
  
  
• The matter of complaint is such that the wider public interest would be served by a HSCOB investigation

Where we decide to conduct our own investigation, our inquiries may involve any one or more of the following:

• Access to all relevant documentation, data, records and other material evidence
  
  
• Interviews with key persons involved in the complaint
  
  
• Witness statements
  
  
• Regard to all relevant legislation, regulations, policy, procedure and best practice guidance
  
  
• In exceptional circumstances, the commissioning of independent specialist opinion or expert advice

All of the information gathered will be brought together to produce a report detailing our findings, conclusions and any recommendations concerning your complaint.

In evaluating a complaint under either review or investigation, we will always be guided by what should have happened, and what actually happened. Complaints can arise due to a person’s expectation of a service not matching their actual experience, so by looking at these very basic considerations we can often identify the root cause of a complaint.

Our reports always indicate whether a complaint is upheld or not with clearly expressed reasons for the decision we have reached.

Our powers as an ombudsman are discretionary. This means any recommendations we make to health or social care providers are not legally binding. However, providers must demonstrate a good reason not to accept our decisions, and the Department of Health & Social Care are responsible for assuring their implementation.

Whilst we do not have the power to recommend compensation or any other form of financial settlement, we can make a range of recommendations designed to provide complainants with remedy and redress proportionate to any detriment experienced. This may include, but not exclusively:

• The provision of an apology expressed in appropriate terms
  
  
• A fulsome explanation for the matters giving rise to the complaint
  
  
• A fresh assessment of need for a specific service or clinical procedure
  
  
• A review of any administrative decision which gave rise to the substantive complaint
  
  
• A review of any policies, procedures , practice or guidance giving rise to the complaint
  
  
• Other appropriate action that would assist in general service improvement

We cannot make a provider cancel or change a decision it is entitled to make as part of its responsibilities, or replace its own decision with ours. We can encourage them to revisit their decision in the light of our findings and conclusions.

We have no power to recommend dismissal or other disciplinary action in relation to a named member of staff, but can recommend that a provider considers the need for a referral to the appropriate health or social care regulator in circumstances where any professional code of conduct has been evidentially proven to have been breached.

The Regulations make provision for third parties to act on behalf of a complainant and we are happy to accommodate such an arrangement in conducting a review. Nonetheless, the same Regulations require us to check that the complainant has given their voluntary authority for a person to act for them.

We are also required to consider vulnerable people and children. The Regulations require us to reach a view on whether a representative is acting in the individual’s best interests, and additionally consider any issues of capacity. Therefore, and before accepting a complaint from a third party representative, we will conduct any necessary inquiries to ensure such an arrangement is appropriate to the circumstances.

HSCOB observes the general principles of confidentiality and privacy, and more specifically the statutory obligations arising from Data Protection & GDPR legislation. We will only store and process data for the purposes required for the consideration of a complaint. This includes access to local complaints records, and (where necessary) access to an individual’s medical, clinical or social care records. We may also suggest that you contact the Information Commissioner in some circumstances.

In making a complaint to HSCOB, complainants accept the statutory authority of the Body to reach a final decision on the merits of their complaint. Similarly, health and social care providers acknowledge the role of HSCOB as the final arbiter in escalated complaints made about them by patients, service users and other eligible persons. Whilst there is no formal right of appeal to a decision of HSCOB, we will give consideration to conducting an administrative review of our decision where a complainant or provider can demonstrate that:

• HSCOB has based its decision on factually inaccurate information
  
  
• New and relevant information is available that is material to the decision of HSCOB
  
  
• HSCOB has erred in law in reaching its judgement on the complaint

You should send us your request for an administrative review and all the supporting information within 6 weeks of the date of our decision letter. We will not accept review requests made later than 6 weeks, unless you can show there were special circumstances that meant you were unable to do so.

You cannot request an administrative review purely because you disagree with our decision. If you want to challenge HSCOB’s final decision, you will only be able to do this using judicial review proceedings. Petition of Doleance review is a form of court proceeding where the Court reviews whether a decision or action by the HSCOB is lawful. You may want to take legal advice before deciding whether this is appropriate in your case.

HSCOB is committed to providing a quality complaint handling service that reflects best practice as recommended by the Ombudsman Association. Nonetheless, it is recognised that from time to time dissatisfaction with the work of an ombudsman service can arise. Therefore, we have a HSCOB Service Standards Complaints Procedure which you can use if you are unhappy with the quality of our service. The procedure sets out our customer service standards and can be used for complaints about how we do our work and our communications with you. It cannot be used to request an administrative review of our final decision concerning your original complaint about a health or social care provider.