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Complaints in the Health and Personal Social Services DHSSPS consultation February 2007
1. Introduction: About Law Centre (NI) 1.1 Law Centre (NI) is a public interest law non-governmental organisation. We work to promote social justice and provide specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland. It provides a specialist legal service (advice, representation, training, information and policy comment) in five areas of law: immigration, social security, community care, mental health and employment. 1.2 The work of the Department of Health, Social Services and Public Safety is of particular relevance to our mental health and community care services. The community care legal representation service deals with personal and support services for a range of people including those who are elderly, ill, disabled, incapacitated and carers. Our community care advice line operates from both our offices and our community care legal representation service provides training for trusts and social services. The mental health legal representation service offers legal representation for issues around admission to hospital for assessment, capacity, treatment, discharge delay, community services and other mental health related legal issues. 1.3 Our services are provided to almost 500 member agencies. Members include local Citizen Advice Bureaux, independent advice agencies, local solicitors, trade unions, social services, probation offices, constituency associations of local political parties, libraries and other civic organisations. 1.4 We welcome the opportunity to respond to this consultation document. We have made some general comments in response and address some of the questions which were posed for consultation.
2. Summary of Recommendations We welcome this timely guidance, which details the new proposals for the handling and consideration of HPSS complaints. We have, however, some concerns regarding the current proposals and the lack of comment on resourcing the proposed changes. We comment in more detail on each of these concerns within the body of the paper and have highlighted the appropriate paragraphs for ease of reference. In summary we recommend:
In addition consideration should be given to the following:
3. General Comments 3.1 We support the simplification of the complaints process as detailed within the guidance. The provision of one consistent approach across the HPSS for staff dealing with complaints and people making complaints is welcome. 3.2 We note the statement that the proposals have been developed in conjunction with representatives from organisations within and beyond the HPSS, staff and user interest groups. We trust that any final guidance will be significantly shaped by the needs and views of these groups. 3.3 We welcome further information regarding how the guidance will be disseminated to HPSS organisations and whether the guidance will itself be publicly available or whether only HPSS organisations will receive it and be entrusted to produce their own materials to consumers to explain the complaints process.
3.4 We also trust that the Department will make the final document available in various formats and that translations into minority languages will also be available. Further, if HPSS organizations are entrusted with producing their own version of the guidance for public reference, the Department should clarify that guidance on the complaints process must be publicly available and available in easy read formats, including translation into minority languages. 3.5 We welcome further information regarding the impact on the guidance that may result from the Review of Public Administration (RPA) and the major organisational change within the HPSS that has occurred and continues to occur as a result. We are concerned that ongoing implications of the RPA may have an undue effect on the implementation of the guidance. Therefore, we would welcome further information from the Department regarding the safeguards that will be put in place to ensure that this does not occur and confirmation that the requirements as detailed within the guidance will not be unduly affected by any changes as a result of the RPA.
4. Structure of the Complaints System 4.1 We would recommend that a best practice complaints system for HPSS in Northern Ireland should be timely, independent, transparent, and accessible to the wider population. An effective complaints system should also have clear review mechanisms in place and provide access to independent advocacy services to assist complainants in the complaints process. Aspects of the current complaints system in Northern Ireland do not meet these criteria and we are unconvinced that the proposed changes will remedy this defect. 4.2 In relation to perceived independence of the complaints process, we are concerned by the removal of second tier complaints services. This results in an undue reliance on the Ombudsman as the only independent body to resolve any residual complaints or review complaint findings. 4.3 We are concerned that removing the second-tier in the complaints system will adversely affect the timeframe for the resolution of complaints. According to the Ombudsman’s Annual Report the average time, in 2005-2006, taken for a health service case to be examined, enquiries made and a full Report issued at Report Stage was 101 weeks.[1] This is an unacceptable timeframe and one that will only increase if second-tier referrals are removed. 4.4 If the Department chooses not to retain the second tier, we would welcome further information regarding the safeguards that will be put in place to ensure that the proposed changes to the complaints system do not result in a backlog of complaints. We have significant concerns regarding the efficiency of the complaints process and the ability for complaints to be resolved in a fair and timely manner if the second-tier review process is abandoned. Clear targets for the time within which appeals will be dealt with should be publicly set, monitored and publicly reported. Complainants should also be able to retain the right to make a complaint directly to the Ombudsman if they so wish, but should be fully informed of the possible time delays.
4.5 While resolution through complaints officers can be an informal and efficient way of dealing with complaints, some complainants may be concerned regarding the confidentiality of their complaint and of the possible repercussions of making a complaint that is dealt with only at a local level. It is important, therefore that local and external complaints systems are available to complainants. Although complainants should be advised that local remedies may need to be exhausted prior to a referral to an outside body dependent on the circumstances of the individual case. 4.6 In relations to monitoring and follow-up, while local resolution may resolve an individual problem it may not so readily lead to the altering of policy or practice to ensure the same issue does not occur again. Findings by the Ombudsman can carry greater weight and his recommendations can result in changes to improve systems and avoid future complaints. Both systems, however, lack a process of monitoring to ensure that findings or recommendations are enforced and implemented. This is also a fault of the second-tier complaints process.
4.7 We are concerned that the guidance offers no comment on resourcing any of the proposed changes in the complaints structure. Additional funds should be allocated to ensure that the proposals to streamline the complaints process and make it more efficient are obtainable.
5. Advocacy 5.1 We welcome the recognition in the guidance of the right to advocacy services and the need for consumers to be informed of their right to have an advocate. Access to support can often help a complainant present his or her complaint effectively and advocacy services are an important way of enabling people to make informed choices. This is particularly important for people with mental health problems. Many mental health patients are often unaware of their rights and feel they can be branded as troublemakers if they raise legal or service issues.[2] 5.2 Although we note the role of the Health and Social Services Councils to represent the public interest in the HPSS, we are concerned by the lack of sufficient advocacy services in Northern Ireland. The provision of an advocate will increase a person’s ability to participate in the complaints process and will enhance their access to justice. 5.3 The Strategic Framework for Adult Mental Health Services Report, part of the Bamford Review of Mental Health and Learning Disability (Northern Ireland), has already recommended a right to advocacy for persons detained. We would recommend that this right be enshrined within legislation to ensure that everyone with mental health problems has access to independent specialist advice and support. Legislating the right to an advocate will go some way to increase the awareness and acceptance of the important role of advocates, which will greatly benefit many people with mental health problems.
6. Training 6.1 The proposals within the guidance place a large degree of responsibility on Complaints Officers to assess and carry out the required procedure. Consideration needs to be given to the allocation of resources for specific training on dealing with complainants. Research indicated a lack of training for health service complaints staff in a Northern Ireland context and a particular need for ongoing training for practice staff in complaints procedures. 6.2 This training should include specific focus on cultural diversity and anti-racism.[3] We consider there to be a pressing need for increased awareness among service providers of the specific issues facing asylum seekers and migrant workers and the targeting of procedures to match their needs. We recommend that priority should be given to providing training and information for health care providers on the needs of migrant workers and asylum seekers. 6.3 Specific training should also focus on dealing with complainants with mental health issues and to the possible impact the complaints procedure may have on the health of these individuals. 6.4 It was recommended, and we would agree, that this training should be undertaken by Boards or Trusts.[4] We would also recommend that training should be informed and/or delivered by those from minority communities and those with mental health issues and/or a learning disability.
7. Vulnerable People 7.1 We have concerns regarding the section in the guidance on vulnerable adults. While we welcome the recognition that HPSS organisations should have explicit arrangements in place for advising and supporting certain groups we disagree with the use of the term ‘vulnerable’ in this section as a catch all term for those people with mental health problems, learning disabilities or for those who are old or frail. While members of these groups may be vulnerable in specific circumstances the use of this term can be degrading and stigmatising for individuals within these groups. It should also be noted that people not falling within these categories may still be vulnerable in certain circumstances. 7.2 The guidance, at paragraph 3.39, details procedures to be followed if a patient or client makes a complaint during an acute illness. We appreciate that specific measures need to be put in place to deal with complaints made by individuals who may genuinely be too unwell to deal with the complaints process for a time. We are concerned, however, by the inclusion of these provisions within the section headed ‘vulnerable adults’. We recommend that the guidance include a separate section to clarify the procedure to be followed if a complaint is made by any individual during an acute illness. This procedure should not be included under the heading of ‘vulnerable adults’, as it may be incorrectly interpreted as only applying to complaints made by people with mental health problems, learning disabilities or by older people. 7.3 If any individual makes a complaint during an acute illness careful consideration needs to be given to the handling of the complaint and whether to proceed or delay inquiries. Complaints Officers should not be responsible for making judgment calls on whether inquiries into a complaint should be delayed until a complainant’s condition has improved. Decisions of this nature must be made by a multi-disciplinary team and the complaint and/or their independent advocate should be fully involved in this process.
8. Specific Questions Q1 Are the proposals, which are set out in the Complaints in the HPSS document likely to have an adverse impact on any group of people in terms of the nine equality dimensions above? Please describe any potential adverse impact that you anticipate. 8.1 We refer to our comments at para 7, which express concern over the use of the term ‘vulnerable’ in relation to older people and those with a learning disability or mental health issue. We believe the use of this term is misleading and inappropriate and is likely therefore to have an adverse impact. We recommend the removal of this term as a descriptor for these groups only. 8.2 Significant responsibility will be placed on Trusts and other health and social services agencies to ensure that the guidance is used as the framework for the complaints process. Considerable training will need to be available to Trusts governing boards and staff prior to any roll out of the guidance to ensure that they are aware of their obligations. Consideration needs to be given to the allocation of resources for this purpose and training should be informed and/or delivered by service users. If training is not correctly carried out the proposals could have an adverse effect on many of the Section 75 groups, especially those of different racial groups and those with a disability. 8.3 The proposals to allocate responsibility to a Complaints Officer to consider advising a complainant that inquiries into his or her complaint should be delayed until his/her condition has improved raise concerns. These proposals may have an adverse impact on older people, people with mental health problems or learning disabilities as it is these groups that are often considered to be lacking in capacity at times of acute illness. All adults are presumed to have capacity until it is proven otherwise, therefore, considerable care will need to be taken before responsibility is given to complaints officers to decide whether or not a complainant has the capacity to proceed with a complaint. Q3 Could these proposals be modified in any way that would better promote equality of opportunity or good relations? If so, how? 8.5 As stated at point 7.1 the term vulnerable should be removed. 8.6 As referred to at point 7.3 Complaints Officers should not be given the responsibility of advising a complainant that inquiries into a complaint should be delayed until his/her condition has improved. People with learning disabilities or mental health problems can often feel intimidated by those in authority and may be more easily persuaded not to proceed with a complaint if advised by a Complaints Officer that the complaint should be delayed. The complainant may agree to this delay simply because the Complaints Officer has advised him or her so. To better promote equality of opportunity for these groups an independent advocate should be involved at every stage of the complaints process and a decision to delay inquiries should only be made by a multi-disciplinary team.
9. Conclusion 9.1 Law Centre (NI) welcomes the opportunity to respond to this consultation document. We trust you will find our comments helpful. If there is any further way in which we could contribute to this process we would welcome the opportunity to do so.
[1] Northern Ireland Ombudsman, Annual Report 2005-2006, at page 81 [2] Northern Ireland Human Rights Commission, ‘Connecting Mental Health & Human Rights’, December 2003. [3] Ibid [4] Southern Area on behalf of DHSSPS, Report on Good Practice Review of Complaints Procedures in the HPSS, 2003 at pg. 14
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