Complaints handling; setting up a complaints policy
DENTAL BULLETIN, ISSUE 11
In our increasingly litigious society, when a patient complains it is a real headache for any dentist; regardless of the merits of the complaint. The way in which complaints are managed at the very outset will dictate whether they will ultimately lead to a more formal legal claim, or even result in fitness to practice proceedings. There are however, some very simple steps that all practices can put in place to stop complaints spiralling out of control.
Every practice, regardless of its size, should have a complaints policy. This is a document that will outline the practice’s commitment to providing an excellent service, but also their commitment to dealing with complaints appropriately. It is essential that an aggrieved patient feels that their complaint is being taken seriously and in a non-biased and transparent way. It is also an excellent way of ensuring that all associates and staff members know how to deal with patient complaints, and are managing them consistently. Like any policy, it should be regularly reviewed to ensure that it takes into account any regulatory changes or obligations.
What should a complaints policy contain?
1. Define the meaning of complaint.
It sounds simple, but a patient may not intend to make a “formal complaint”, but if they are expressing concern or dissatisfaction, verbally or in writing, with any aspect of the treatment received it is technically a complaint and requires a response of some sort. Failure to deal with “concerns” can quickly snowball to a full blown complaint.
2. Make clear who can make a complaint.
Whilst more often than not it is the patient themselves who is complaining, a complaint can also be made by a person acting on behalf of the patient. Parents or carers are easy to identify, but there may also be circumstances where the patient has given their consent to a third party to pursue the complaint on their behalf. If this is the case, ensure that full written consent to this effect from the patient is obtained before any communication takes place with the third party.
3. Make it clear how to complain.
If a patient has made an “informal complaint”, then refer them to the complaints policy at first instance. This should not be seen as an encouragement to take the complaint further, but does communicate to the patient that you are taking their concerns seriously and that you know how to manage, and stop, spurious complaints. The policy should communicate that every attempt will be made to deal with the complaint informally, however if this is not possible, then the patient is invited to follow the procedure set out within the policy. Whether informal or not, ensure that a comprehensive note of all conversations is kept, and any emails or letters relating to the complaint are held on a separate complaints file.
4. Make it clear that all complaints will be dealt with in the strictest of confidence.
Patients should be reassured that notes relating to their complaint will be held separately from their medical notes and that information will only be disclosed to those who need to have access to it. Make clear that information will not be disclosed to third parties unless the patient or their representative has given their explicit consent. Make it clear that details of complaints will be retained by the practice for ten years.
5. Consider a time limit for complaints.
Inform patients that complaints should be made within twelve months of the matter coming to the attention of the patient, unless there is good reason for not having made the complaint. This does not limit the periods of liability for clinical negligence, but will hopefully ensure that more minor complaints can be resolved quickly; particularly those that don’t relate to the treatment given but have more to do with the quality of the service received.
6. Inform the patient what time frame will be met.
All formal complaints, whether verbal or in writing, should be acknowledged within 5 working days. If possible, this should be done in writing, although if done over the phone, ensure a full note of the conversation is made, and ensure the staff member acknowledging the complaint knows exactly what should and should not be said at this stage. Make no assessment or judgement regarding the merits of the complaint unless you have undertaken the necessary investigation. At this stage determine the method by which the patient would like to communicate.
The acknowledgement should set out the timeframe required to both investigate the complaint and to respond. If the patient has indicated that they would prefer to deal with the complaint over the phone, also consider sending a letter or email to ensure that there is a clear “paper trail” to evidence the complaint procedure if necessary. The time frame set may alter depending upon the complexity of the complaint.
7. Formally respond.
Once a full investigation of the complaint has been undertaken send a formal response in writing to the patient. This will include:
- An explanation as to the investigation that has taken place. Where ever possible ensure that that the investigation has been carried out by a ‘neutral’ person, i.e. not the individual that the complaint relates to.
- Conclusions that have been reached and confirmation as to whether the complaint is being upheld in part of full.
- An apology if appropriate (although it can sometimes be the hardest word, it is often all that is needed).
- An explanation based on the facts.
- Any action that will be taken to rectify the situation.
- Details of where their complaint should be directed to if they are not happy with the outcome of the internal investigation. This information will depend on whether the treatment provided was provided under the NHS or privately (Dental Complaints Service), or whether the complaint relates to the practice rather than the individual dentist, in which case the patient should be directed to the CQC.
It is often the case that a patient just wants their money back. Where the complaint is not upheld by the dentist, it is thereafter a business decision for the individual practice as to whether they will refund a payment for treatment as a ‘gesture of goodwill’. If phrased correctly this is not an admission of liability, it is simply a way of saving your business time and money in the long run. Complaints can cost you more time to investigate and administer properly than the value of the treatment in question.
Don’t be bullied
There is a certain type of patient who sets alarm bells ringing from the outset. It often starts when they introduce themselves as a “fellow professional”. Be it doctor or lawyer; they want you to know that they ‘know their rights’. However, recently there has been something of a backlash against the professional bully.
The case of ‘Dr S’
An example of this is the case of Mr Davies, a practicing barrister. He was a patient of Dr S between 2007 and 2010. Dr S placed an implant in 2008, which ultimately failed and was removed in 2009. Mr Davies expressed his dissatisfaction with the treatment he had received. Thereafter the two met to discuss the complaint and correspondence was exchanged.
During the course of the discussions Mr Davies made various statements regarding his professional status. In particular he said that he was “a barrister, a trained mediator and expert in medical negligence”, he asserted that he would win the case against Dr S. He also stated that the legal principle of restitution applied in the case (it did not), which meant that Dr S was not only obliged to return his money to him, but also to restore his state of dentition.
Dr S went on to meet with the Mr Davies, and offered to “give consideration to restoring [his] mouth with a more expensive, conventional implant treatment option at no extra cost’”. He also noted that Mr Davies had again advised him of his legal obligations to both refund his money, including all expenses, and to put him back in a position as if treatment did not occur. As a result of Mr Davies representations, Dr S agreed to this course of action, but felt so aggrieved by the bullying nature of the demands that he contacted his insurers who made a note of his complaints.
Dr S went on to refund all the money paid and to offer additional treatment for free to rectify the problems. However, understandably, felt uncomfortable with this course. Ultimately, he reported Mr Davies to the Bar Standards Board and disciplinary proceedings followed. The Bar Standards disciplinary tribunal found that Dr S was an honest and reliable witness. They did not find that Mr Davies was untruthful per se, but found his evidence confused at times. They felt that his feelings of grievance over the treatment and its cost predominated over his account. Overall they preferred the evidence of Dr S.
Mr Davies was found guilty of professional misconduct. The original tribunal found that he had engaged in conduct likely to diminish public confidence in the legal profession, the administration of justice or otherwise bring the legal profession into disrepute. He had abused his position as a barrister by threatening to sue his dentist and wrongly stating the principle of restitution applied.
In October the High Court upheld this decision, dismissing Mr Davies’ appeal.
What is clear from this case is that the contemporaneous notes made by Dr S during his own investigation of the complaint, and his regular and clear correspondence made it much easier for the tribunal to accept his evidence as accurate. However, where he does appear to have fallen down is in his seeking advice from his insurers rather than a properly qualified lawyer who would have informed him immediately that Mr Davies was not correct in his assertions, and that the principle of restitution did not apply in this case. For a small investment of time and money at an early stage, he could have saved thousands of pounds and many hours of time.
If you need assistance with dealing with a current complaint then please do not hesitate to contact Julia Furley on 0207 388 1658 or by email at jfurley@jfhlaw.co.uk.
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Julia Furley, Barrister
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written, which may affect the information and advice given therein.
