Health service complaints

Transcription

1 Health service complaints Mental Capacity Health service complaints Contents Complaints v legal proceedings 1 The complaints procedure 1 Who can make a complaint? 2 Time limits 2 Complaints not required to be dealt with 3 How to make a complaint and the consequent procedure 3 Rights of appeal 3 The role of the Health Service Ombudsman 4 Patient Advice and Liaison Services 4 The functions of the Care Quality Commission 4 Professional bodies: the General Medical Council, the Nursing and Midwifery Council and the General Social Care Council 5 Proposed changes to the structure of the health service 5 This legal briefing deals with Health service complaints and the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 and concludes with a brief note on proposed changes to the structure of the health service. Health service complaints Complaints v legal proceedings Where one person has a duty of care to another say, for example, a doctor providing treatment to a patient and that person breaches their duty of care say the doctor makes a negligent mistake and as a result of that breach of duty, the patient suffers damage or loss, then the patient may have a claim against the doctor. If the patient has a cause of action against the doctor, the patient may choose to take proceedings against the doctor through the courts. However, legal proceedings can be costly and time consuming and can usually offer only financial compensation as a remedy. Sometimes financial compensation is not what the patient is looking for they may prefer an apology. In those circumstances the health service complaints procedure may be a more appropriate remedy. The complaints procedure The procedure is set out in the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 which came into force

2 Page 2 of 12 in April At the same time guidance was issued, Listening, Responding, Improving a guide to better customer care. The regulations apply to responsible bodies and responsible body means a local authority (LA), NHS body, primary care provider or independent provider. Each responsible body must make arrangements for dealing with complaints in accordance with these regulations. The arrangements for dealing with complaints must be such as to ensure that (a) complaints are dealt with efficiently; (b) complaints are properly investigated; (c) complainants are treated with respect and courtesy; (d) complainants receive, so far as is reasonably practical (i) assistance to enable them to understand the procedure in relation to complaints; or (ii) advice on where they may obtain such assistance; (e) complainants receive a timely and appropriate response; (f) complainants are told the outcome of the investigation of their complaint; and (g) action is taken if necessary in the light of the outcome of a complaint. Each responsible body must designate a person to be responsible for ensuring compliance with the complaints procedure. The responsible body must also designate a person to be a complaints manager to be responsible for managing the complaints procedure. Who can make a complaint? A complaint may be made by (a) a person who receives or has received services from a responsible body; or (b) a person who is affected, or likely to be affected, by the action, omission or decision of the responsible body which is the subject of the complaint. In addition, a complaint may be made by a person on someone else s behalf where the person who received the services, or was affected or is likely to be affected by the action, omission or decision: (a) has died; (b) is a child; (c) is unable to make the complaint themselves because of (i) physical incapacity; or (ii) lack of capacity within the meaning of the Mental Capacity Act 2005(a); or (d) has requested the representative to act on their behalf. Time limits With some exceptions, a complaint must be made not later than 12 months after:

3 Page 3 of 12 (a) the date on which the matter which is the subject of the complaint occurred; or (b) if later, the date on which the matter which is the subject of the complaint came to the notice of the complainant. (NB this contrasts with the three-year time limit which applies to the bringing of a personal injury claim through the courts). The exception is where the responsible body is satisfied that the complainant had good reasons for not making the complaint within that time limit and notwithstanding the delay, it is still possible to investigate the complaint effectively and fairly. Complaints not required to be dealt with Regulation 8 deals with some complaints which do not have to be dealt with under the regulations. This includes complaints which are made orally and which are resolved not later than the next working day after the day on which the complaint was made and complaints the subject matter of which has previously been investigated under the regulations. Also not to be dealt with under the regulations are complaints arising out of an alleged failure by a responsible body to comply with a request for information under the Freedom of Information Act If the responsible body considers that it is not required to deal with a complaint it must as soon as reasonably practicable notify the complainant in writing of its decision and the reason for the decision How to make a complaint and the consequent procedure A complaint may be made orally, in writing or electronically. Where a complaint is made orally, the responsible body to which the complaint is made must make a written record of the complaint; and provide a copy of the written record to the complainant with a copy of the complaints procedure. In most cases the responsible body must acknowledge the complaint not later than 3 working days after the day on which it receives the complaint. The responsible body must investigate the complaint as quickly and efficiently as possible and keep the complainant informed of progress. As soon as reasonably practicable after the end of the investigation, the responsible body must send the complainant a written response which must include an explanation of how the complaint has been considered and the conclusions reached. The responsible body must also confirm that it is satisfied that action needed has been taken or will be taken. If an investigation has taken place under the significant incident procedure, the complainant would normally be sent the investigation report. Rights of appeal The response must include, where the complaint relates wholly or in part to the functions of an LA, details of the complainant s right to take their complaint to a Local Commissioner under the Local Government Act 1974 (i.e. the Local Government Ombudsman)

4 Page 4 of 12 In all other cases, the response must include details of the complainant s right to take their complaint to the Health Service Commissioner under the Health Service Commissioners Act 1993 (i.e. to the Health Service Ombudsman) The role of the Health Service Ombudsman An appeal to the Health Service Ombudsman (officially called the Parliamentary and Health Service Commissioner) is the next step if the complaints procedure described in the regulations does not produce the desired result. If the complaint also concerns social care then the Local Government Ombudsman will jointly review the case. The Health Service Ombudsman is entirely independent of the NHS. The Ombudsman is not obliged to investigate every complaint referred to him/her and will not generally take on a case which has not been through the internal complaints procedure first. He or she will not investigate a complaint which is the subject of legal proceedings. Strict time limits apply. In particular a complaint must be made within 12 months of the date of the relevant events unless there are special reasons for the delay. The Ombudsman can investigate complaints about poor treatment or service provided through the NHS. If the Ombudsman does find a fault has occurred then they can get the organisation to: provide an explanation and acknowledgement of what went wrong; and take action to put the matter right, including providing an apology. Where the Ombudsman finds serious faults with the organisation they can also recommend compensation for a financial loss, The Ombudsman does not have any formal power to enforce their recommendations but they are almost always followed. Patient Advice and Liaison Services In England, Patient Advice and Liaison Services (PALS) have been established in every Hospital Trust and Primary Care Trust. PALS may be a useful source of information and advice when considering making a complaint. The functions of the Care Quality Commission The Care Quality Commission started work on 1 April 2009 and brought together the responsibilities which were formerly exercised by the Healthcare Commission, the Commission for Social Care Inspection and the Mental Health Act Commission. It is the independent regulator of health and social care in England. The CQC does not become directly involved in unresolved complaints but has a role in overseeing arrangements for handling complaints by health and social care organisations. The CQC also has a number of functions relevant to people who are liable to be detained under the Mental Health Act The main functions of the CQC are to keep under review the exercise of the powers and duties contained in the Act and to visit and interview detained patients. It will also help detained patients with their complaints and Commissioners regularly visit each hospital which has detained patients. The CQC also appoints medical practitioners for the purposes of providing second opinions, submits proposals on

5 Page 5 of 12 certain forms of treatment and makes comments and recommendations on the Code of Practice. The CQC publishes a report every year on its activities. Professional bodies: the General Medical Council, the Nursing and Midwifery Council and the General Social Care Council Allegations of professional misconduct made against individuals (including negligence) can be addressed to the relevant professional body responsible for that individual. In the case of doctors the responsible body is the General Medical Council. The function of the GMC is to ensure that its members, the doctors and consultants, are abiding by its rules and codes of conduct. Its function is safeguard patients from unacceptable medical practice, and if necessary, to discipline members; it does not award damages. Other professions have their own governing bodies, for example the Nursing and Midwifery Council for the nursing profession and the General Social Care Council for social workers. Their primary purpose is also to regulate their professions and ensure that members abide by their codes of conduct. As such their powers are essentially disciplinary. Proposed changes to the structure of the health service There are changes proposed in relation to the structure of the health service. The government is proposing to remove the primary care trusts ( PCTs ) and give local authorities responsibility for public health and joint working between NHS and other services. These measures will affect health services in England only. A new non-departmental body, HealthWatch, is to be established within the Care Quality Commission, to champion patients concerns nationally. Local HealthWatch divisions will be funded by and accountable to councils, and will support patients unable to make choices unassisted. The time frame for these charges are that strategic health authorities will be abolished by 2012/13, with PCTs phased out from April The Health and Social Care Act received Royal Assent on 27 March The Act addresses a range of issues relating to health and social care. The Act gives effect to the policies that were set out in the White Paper Equity and Excellence: Liberating the NHS which was published in July The main aims of the Act are to change how NHS care is commissioned through the greater involvement of clinicians and a new NHS Commissioning Board; to improve accountability and patient voice; to give NHS providers new freedoms to improve equality of care; and to establish a provider regulator to promote economic, efficient and effective provision. In addition, the Act will underpin the creation of Public Health England, and take forward measures to reform health public bodies.

6 Page 6 of 12 Mental capacity Contents Principles of the MCA 6 When does the MCA apply? 7 Application of the MCA to persons under 18 7 Relationship between the MCA, the Mental Health Act 1983 (the MHA) and mental health diagnosis 8 Consequences of lack of capacity to make a particular decision 8 How is lack of capacity determined? 9 Best interests 9 Planning ahead lasting powers of attorney 10 Planning ahead (2) advance directives 10 Court of Protection 11 Deputies 11 Ill-treatment or neglect 11 Code of Practice 11 The Mental Capacity Act, Deprivation of Liberty safeguards (MCA DOLS) 12 This legal briefing deals with Mental capacity issues and the Mental Capacity Act The Mental Capacity Act 2005 (MCA) Principles of the MCA The MCA begins with a statement of five principles which underpin the framework it establishes. The principles are: 1 A person must be assumed to have capacity unless it is established that he lacks capacity. 2 A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. 3 A person is not to be treated as unable to make a decision merely because he makes an unwise decision. 4 An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. 5 Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person s rights and freedom of action.

7 Page 7 of 12 When does the MCA apply? The MCA came into force on 1 April It contains provisions about the making of decisions for persons who, at the material time lack capacity to make the decision. It does not relate to persons under the age of 16 who do not as a matter of law have capacity. A person lacks capacity within the meaning of the MCA if at the material time, he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. It does not matter whether the impairment or disturbance is permanent or temporary. A lack of capacity cannot be established merely by reference to a person s age or appearance or to a condition or aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. A person is considered to be unable to make a decision for himself if he is unable to: (a) understand the information relevant to the decision, (b) retain that information, (c) use or weigh that information as part of the process of making the decision, or (d) communicate his decision (whether by talking, using sign language or any other means). The key point arising from this is that lacking capacity it not a state of being. It has to be determined on each relevant occasion in relation to each relevant decision. The MCA uses phrases such as in relation to a matter and at the material time, making clear that mental capacity must be considered in relation to a specific decision and that it is not a status that a person does or does not have. Indeed throughout the MCA and MCA Code of Practice a person s capacity (or lack of capacity) refers specifically to their capacity to make a particular decision at the time it needs to be made. Application of the MCA to persons under 18 With two exceptions the MCA does not apply to children under 16. The exceptions are that: The Court of Protection can make decisions about a child s property and finances if the child lacks capacity to do so (under section 2(1) of the MCA) and is still likely to lack the capacity so to do when they reach 18 (section 18(3)). Offences of ill-treatment or wilful neglect of a person who lacks capacity can also apply to victims younger than 16 (Section 44). Most of the Act applies to young people aged years who may lack capacity under section 2(1) to make specific decisions, but there are three exceptions. The exceptions are that:

8 Page 8 of 12 Only people aged 18 or over can make a Lasting Power of Attorney (LPA) Only people aged 18 and over can make an advance decision to refuse medical treatment The Court of Protection may only make a statutory will for a person aged 18 and over. Relationship between the MCA, the Mental Health Act 1983 (the MHA) and mental health diagnosis If a person has a particular mental health diagnosis, it does not necessarily follow that they will not have capacity to make their own decisions. The analysis has to be carried out for each decision which has to be taken at the relevant time. Persons with mental health diagnoses may well still have the capacity to make all of their own decisions. Other people given a mental health diagnosis may lack mental capacity to make some, but not all, decisions. For example, a person who hears voices and has been given a diagnosis of schizophrenia may feel unable to make a certain decision when the voices are at their most distressing. However, that person may feel able to make the same decision on a day when he or she is not hearing the voices. If a person has been detained (or sectioned ) under the MHA they may still have capacity to make all of his or her own decisions. However, if the decision relates to treatment for mental disorder under the MHA, the law allows a person to be treated against his or her will and this is the case even if the person has the mental capacity to make decisions about that treatment. In the case Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, C had been admitted to a secure hospital as a patient under Part III of the MHA because of his paranoid schizophrenia. He had gangrene in his left leg and the doctors considered that amputation was necessary to save his life. He refused such treatment. Since he was detained under the MHA, he could be treated with medication for his mental disorder whether he had mental capacity to agree to this medication or not. However, the doctors could not amputate his leg under MHA powers since this was not treatment for mental disorder. They had to ask for the patient s consent to perform the amputation and he refused this treatment. Without this consent, the only way the doctors could perform the amputation was if the High Court decided that the patient did not have mental capacity to make this decision and then declared that the amputation was in his best interests (the MCA was not in force at the time but the law concerning capacity and best interests was very similar to the law now in force under the MCA). Despite the patient s mental distress and diagnosis, the court decided that he did have mental capacity to make the decision about his gangrene and the doctors were unable to operate without his consent. Consequences of lack of capacity to make a particular decision The MCA allows people to plan for what should happen if they ever become unable to make particular decisions in the future. For example, it allows people to make advance decisions. If a person has not made plans and at some point

9 Page 9 of 12 becomes unable to make a particular decision, the MCA says that someone else may make that decision. This could be anyone a friend, a relative, an informal carer, a professional carer, a doctor, a social worker, a nurse and so on. Even if someone else makes the decision, the MCA says that the person who lacks the capacity to make the decision should still be involved as much as possible in the process. It also says that any decisions or action taken on behalf of a person who lacks capacity to take these decisions or actions must be taken in the person s best interest which is one of the five fundamental principles (see below for further discussion about a person s best interests). Past information about what this person has said before they lacked capacity should be taken into account in determining the question of what is in their best interests and if the person made any advance directives before their capacity deteriorated, they must be considered see below in relation to advance directives generally. How is lack of capacity determined? Before anyone takes an action or a decision under the MCA, they must have a reasonable belief that the person they are helping does lack capacity to take the action or decision. The person intending to take the action or decision must therefore assess the person s capacity to take that action or decision for him or herself. In doing this, they need to consider what the law says lacking capacity means. Where straightforward day-to-day actions and decisions need to be taken, it may be the person s friends and family who make an assessment. Where more difficult decisions have to be made, such as giving consent to medical treatment, a more formal assessment of the person s capacity may have to be undertaken by a professional, for example a doctor. In many cases the person making the decision for someone else may well, if it entailed an important medical or social care decision, want an independent assessment of this nature to take place. Whoever assesses the person s capacity must follow the principles of the MCA set out above. This means that they must, for example, assume that the person has capacity unless it is established that he or she lacks capacity. They must also take all practical steps to help the person make his or her own decision. The assessor must remember that capacity should be considered in relation to specific decisions. The person they are helping may find it difficult to make some decisions but easier to make others. However, if a person has a long term medical problem that affects their capacity for example, a form of dementia then a carer may not have to make a new assessment every time they take an action on the person s behalf for example, every time they dress the person in the morning. In this situation, it will easy for the carer to show that they had a reasonable belief that the person they are helping lacks the capacity to take this action on his or her own. Best interests The MCA does not contain a definition of the term best interests but section 4 of the Act sets out a checklist of issues that should be considered by anyone taking

10 Page 10 of 12 an action or decision on behalf of someone else. The checklist contains some things that the person taking the action or decision must do. They must: (1) consider all the relevant circumstances; (2) consider whether and when the person will have capacity to make the decision in the future and whether to put off making the decision immediately (for example, if the person is experiencing severe mental distress, it may be that this distress will ease in the near future so that the person will be able to make their own decisions); (3) support the person s participation in acts done for him and decisions affecting him; (4) consider the person s expressed wishes and feelings, beliefs and values and other factors that the person would be likely to consider; (5) take into account the views of carers, people with an interest in the person s welfare, or those appointed to act for the person. The checklist also contains some things that the person taking the action or decision must not do. They must not base the best interests decision on unjustified assumptions based on age, appearance, medical condition or behaviour; or make a decision about life-sustaining treatment "motivated by a desire to bring about his death". The checklist is non-exhaustive which means that other issues can also be considered. Planning ahead lasting powers of attorney The MCA introduced lasting powers of attorney (LPA). These allow the person making the LPA (the donor) to give power to someone else (the attorney) to make decisions on the donor s behalf. The donor decides who the attorney should be and how wide-ranging the power should be. There are two types of LPA the property and affairs LPA and a personal welfare LPA. A property and affairs LPA covers issues such as the management of bank accounts and the buying or selling of a home. It effectively replaces the Enduring Power of Attorney (EPA) that could be made up until the MCA came fully into force on 1 October Until the MCA came into force people were only allowed to appoint attorneys to make financial decisions. Now people can make personal welfare LPAs that cover issues such as medical treatment, social care and where to live. Planning ahead (2) advance directives The term advance directive means a statement explaining what medical treatment a person would not want in the future, should that person come to 'lack capacity' as defined by the MCA. This is sometimes called a 'living will', but unlike a will, it does not deal with money or property. An advance directive is legally binding in England and Wales. Except in the case where the individual decides to refuse life-saving treatment, it does not have to be written down, although most are. While the patient has capacity their word overrides anything contained in their advance directive or anything their legal representative may say.

11 Page 11 of 12 Court of Protection The MCA created a new Court of Protection to oversee actions taken under the Act and to resolve disputes that involve mental capacity matters. The Court has the same authority as the High Court and appeals can be made against its decisions, with permission, to the Court of Appeal. The Court has the power to make declarations as to whether a person has or lacks capacity to make a particular decision and to rule whether an act that is being proposed in relation to a person is lawful or not. It is the Court which will rule on the validity of LPAs and which will determine the meaning or effect of an LPA. Deputies The new Court of Protection is able to appoint deputies as substitute decision makers where a person loses capacity and has not completed an LPA. Deputies are able to take decisions on health and welfare as well as financial matters. They are likely to be appointed when an ongoing series of decisions is needed to resolve an issue, rather than a single decision of the Court. In most cases, the deputy will be a family member or someone who knows the person well. However, the court may sometimes appoint a deputy who is independent of the family cases where the person s affairs or care needs are very complicated, for example. Deputies have to make decisions in the person s best interests and allow the person to make any decisions that he or she still has capacity to make they do not have power to make all of the person s decisions just because they have been appointed. Ill-treatment or neglect Section 44 of the MCA creates a new offence of ill treating or wilfully neglecting a person who lacks capacity. This applies to anyone helping a person who lacks capacity to make his or her own decisions and also to attorneys and deputies. The maximum sentence is up to five years imprisonment and/or a fine. Code of Practice The MCA is supported by guidance contained in a Code of Practice to the MCA: The Code sets out much more detail about the MCA and gives examples of how the Act applies to particular situations. The Code is not law in the same way as the MCA itself is but certain categories of people are legally required to have regard to relevant guidance in the Code, for example attorneys, deputies, IMCAs and anyone acting in a professional capacity for, or in relation to, a person who lacks capacity to make particular decisions. If any of these people have not followed relevant guidance in the Code then they are expected to give good reasons for why they have departed from the Code s guidance. Friends, relatives and informal carers are not under the same duty but are expected to follow the general principles set out in the Code.

12 Page 12 of 12 The Mental Capacity Act, Deprivation of Liberty safeguards (MCA DOLS) The Mental Capacity Act Deprivation of Liberty safeguards (formerly known as the Bournewood safeguards) were introduced into the MCA through the Mental Health Act 2007 (which received Royal Assent in July 2007). The MCA DOLS apply to anyone: aged 18 and over who suffers from a mental disorder or disability of the mind such as a profound learning disability who lacks the capacity to give informed consent to the arrangements made for their care and / or treatment and for whom deprivation of liberty (within the meaning of Article 5 of the ECHR) is considered after an independent assessment to be necessary in their best interests to protect them from harm. The safeguards cover patients in hospitals, and people in care homes registered under the Care Standards Act 2000, whether placed under public or private arrangements. The safeguards came in to force in April 2009 and are designed to protect the interests of an extremely vulnerable group of service users and to: - ensure people can be given the care they need in the least restrictive regimes - prevent arbitrary decisions that deprive vulnerable people of their liberty - provide safeguards for vulnerable people - provide them with rights of challenge against unlawful detention - avoid unnecessary bureaucracy