Handling complaints within the private sector

Dr Ellie Mein explains the complaints-handling process within the private sector and the introduction of the new Code of Practice from the Independent Sector Complaints Adjudication Service.

An ENT surgeon contacted the MDU after he learnt that a complaint from one of his private patients was being ‘escalated to the ISCAS for independent adjudication’ despite him already responding via the private hospital. 

He was unfamiliar with this organisation and the adjudication process the hospital had notified him of. Consequently, he wanted advice on what to expect, as he was also concerned about the confidentiality aspect of the request for patient records by this third party.

ISCAS – otherwise known as The Independent Sector Complaints Adjudication Service – sits within the Centre for Effective Dispute Resolution (CEDR). It provides independent adjudication on complaints for the private healthcare sector, specifically for those organisations that subscribe to it.

A recent significant development is that, as of the 1 February 2022, a new ISCAS Code of Practice for Complaints Management has been published that aligns with the Parliamentary and Health Service Ombudsman (PHSO) Complaint Handling Framework. 

The PHSO provides an independent complaint-handling service for complaints that have not been resolved locally by the NHS in England. 

Aligned with NHS

While it has long been the case that the principles of good complaint handling in the NHS are broadly applicable to the private sector, this new ISCAS code will bring the approach to complaints about private care even more in line with the NHS complaints procedure. 

In the NHS, the complaints process outlines two stages: local resolution followed by the PHSO if the complainant remains dissatisfied. The ISCAS code, however, sets out a three-stage process for addressing complaints. 

The first is when the complaint is raised directly with the hospital or clinic and this is where the relevant clinician, such as our ENT surgeon, will contribute to a response. 

If this does not resolve the concerns, stage two involves an internal review by someone who was not involved in responding at stage one.

Thereafter, an unresolved complaint can be escalated to stage three, which involves ISCAS independent adjudication. The aim of this stage is to bring a final resolution of the complaint for all parties and there is no right of appeal against a decision reached.

Once ISCAS has accepted a complaint for adjudication, it asks the complainant for written confirmation that they wish to participate in the process and outlines the terms of this. 

Patient’s consent

The complainant’s/patient’s consent will also be obtained for the subscriber – the hospital or clinic – to provide ISCAS, the independent adjudicator and any instructed clinical experts with a copy of their clinical records and complaint correspondence to date. 

Being aware of this step may reassure clinicians about ISCAS requests for medical records and letters.

As part of the adjudication process, the adjudicator compiles a timeline and identifies the key themes of the complaint. These are then shared with both the complainant and the subscriber and their response to these points of complaint are invited. 

Following the complaint being defined and agreed, the adjudicator may, as part of their investigation, instruct an expert witness to opine on the clinical matters of the complaint. 

If this is the case, the complainant and subscriber will be provided with a list of intended questions for this expert and invited to comment with any suggested amendments.

At the end of the investigation, the adjudicator writes to the subscriber, usually within three to six months for most cases, to communicate their final decision. 

This letter will provide:

 A summary of the case and decision; 

 Any learning points for the subscriber organisation; 

 Advice to support resolution, such as when an apology is necessary;  

 How to improve compliance with the ISCAS code. 

Additionally, they have the authority to award a goodwill payment. Such payments may recognise shortcomings in the service but can also be made for poor complaint handling, distress or inconvenience up to a maximum limit of £5,000. 

This illustrates why it is important to get the local complaint handling right before ISCAS becomes involved, as the handling of the complaint can be scrutinised as well as the incident which gave rise to the complaint.

Watchdog involvement

ISCAS shares adjudication decisions with the Care Quality Com­mission (CQC) in England and the Healthcare Inspectorate Wales (HIW). Individual clinician details are anonymised, but the hospital/organisation will remain identifiable. 

The CQC considers issues arising from complaints as part of the repository of information it holds on each hospital/organisation and may use this to recommend improvements.

As an alternative to adjudication and following the agreement of both parties, mediation may be offered as an alternative route to resolution. However, if mediation is not successful, the complaint can still run through the adjudication process.

Go to https://iscas.cedr.com/patients/provider-directory to learn more about ISCAS subscribers. Further information on the goodwill payment structure and managing unacceptable behaviour by complainants can be found at https://iscas.cedr.com/healthcare-providers/subscriber-content.

Dr Ellie Mein (right) is a medico-legal adviser at the Medical Defence Union (MDU)