Hospitals told to investigate all patient complaints in spite of possible lawsuits

Hospitals told to investigate all patient complaints in spite of possible lawsuits Exclusive: Department of Health forced to issue new guidelines after patient safety charity threatens to seek judicial review.

Hospitals will be banned from refusing to investigate complaints from patients harmed by poor care who may also sue for damages, after campaigners condemned the practice as an illegal and unfair denial of patients' rights.

Jeremy Hunt, the health secretary, is moving to end the situation whereby some hospitals decide not to look into a complaint or to halt an investigation simply because the patient or relatives have also launched a lawsuit – or even just sought legal advice about doing so.

The Department of Health (DH) has agreed to issue new guidance to all NHS organisations in England telling them to look into all complaints, regardless of the possibility of being sued. It was forced to act after the patient safety charity Action against Medical Accidents threatened to seek a judicial review at the high court.

The charity sought legal advice after patients harmed by medical errors said they had been warned by hospitals that their complaint would be put on hold if they went to court or even considered doing so, despite the practice being outlawed by the DH in 2009. "They had insult added to injury by this denial of their rights," said Peter Walsh, the group's chief executive. Some hospital trust websites still state they will not investigate complaints in such circumstances, even though the NHS constitution says every complaint has to be looked into properly.

The charity's lawyers told Hunt it had identified "a significant and persistent problem in that NHS trusts are halting or abandoning investigations into complaints made under the complaints procedures once there has been any indication that legal action is being contemplated or will be taken at some future point". It blamed the DH's "muddled and counterproductive" advice to trusts on how to implement the 2009 regulations that supposedly ended the practice.

"Refusing to investigate complaints if people exercise their civil right to take legal action is deeply unfair and a disgraceful abuse of patients' rights, which is also totally at odds with government pronouncements about openness," said Walsh. "The practice of some NHS trusts has been totally unacceptable, seemingly designed to hide facts that may assist a claimant or deter claims, and totally contrary to stated policy, which requires hospitals to be open when someone has been harmed."

The fact that hospitals have been able to reject or ignore certain grievances has added to concerns about the NHS complaints system. Patients have described how the pain of experiencing poor care has been compounded by encountering a wall of silence when they complain, along with NHS staff closing ranks and a refusal to be honest about what went wrong.

The NHS ombudsman recently criticised the "toxic cocktail of reluctance by patients to complain and defensiveness by hospitals in handling complaints [which] means concerns and complaints are going unheard or unaddressed". A review of the system, ordered by David Cameron after the Mid Staffordshire hospital scandal, is to report soon.

Jeremy Taylor, chief executive of National Voices, which represents dozens of health charities, welcomed the health department's agreement to revoke and replace the 2009 regulations. "Patients and families have a clear legal right to have all complaints investigated as confirmed in the NHS constitution. It is not acceptable for any organisation providing services to the NHS to breach this duty. The possibility of legal action does not provide a legitimate reason for trusts to fail to investigate", he said.

A DH spokesman said: "We expect the NHS to respond to all complaints raised." That should apply in all but "exceptional circumstances in which a complaint is put on hold because the trust and complainant have been discussing its timing and handling", he said. This is often linked to a legal claim.

Meanwhile, Hunt has been accused of backtracking on a key recommendation in the official report into Mid Staffs. Earl Howe, the health minister, confirmed in the Lords last week that the "duty of candour" on hospitals proposed by Robert Francis QC, obliging them to tell patients about mistakes, would only apply to cases resulting in death or serious injury. However, that will mean it will apply to fewer cases than envisaged by Francis, who said it should cover those where death or serious harm "may have", or were "believed" or "suspected" to have, resulted from a blunder. The definition outlined by Hunt is also at odds with a number of separate official policies which require the NHS to be honest about patient safety incidents resulting in anything constituting "moderate" harm or worse, such as the National Patient Safety Agency's "being open" guidance about what to do over errors.

"There is a grave danger that this [duty of candour] initiative, which has the potential to b the biggest advance in patient safety and patients' rights in history, will be watered down or limited to the extent that its effect will be minimal", said Walsh. Narrowing the definition of harm was "morally and ethically wrong", he added.

Taylor effectively accused the DH of hypocrisy over the issue.

"The DH likes to talk about 'putting patients first' but in practice seems happy to make far-reaching decisions affecting the quality and safety of patient care behind closed doors."

The DH said it was committed to introducing a duty of candour. It is due to respond in detail to Francis's 290 recommendations, designed to achieve "zero harm" in the NHS, in mid-November. The Guardian