12. The law (Health Service Commissioners Act 1993) is clear that a person needs to make their complaint to us within a year of becoming aware of the problem. We cannot investigate complaints brought to us after one year, unless we consider there is a good or exceptional reason to do so. In those situations, we consider matters which may have prevented a complaint being raised and if they justify the delay incurred.
13. Our own policy guidance (SMG) sets down under section 2.235 that we consider the date a complainant could first raise a formal complaint, to be the date they had reason to complain or became aware of the problem. The guidance states that if a complaint comes to us outside of the 12-month time limit, we must consider whether to put the time limit to one side. We should consider the complainant’s reason for the delay and the time it has taken them to pursue and complete local resolution.
14. A decision to put the time limit to one side is for us to decide and is something we need to consider by law.
Timeline of complaint
15. Taking into consideration the information Miss O has provided, we consider the date she became aware of her concerns about the Practice to be 22 and 23 September 2020. As such, we should have received her complaint by 23 September 2021 at the latest. However, we did not receive this until 9 February 2022, approximately four months and 17 days outside of the legal time limit.
16. We can see Miss O was prompt at raising her complaint with the Practice on 8 October 2020 and it responded approximately seven weeks later on 27 November. Within its response, Miss O was signposted to us if she remained unhappy.
17. Miss O then escalated her complaint to the Practice around three weeks later on 21 December, and the Practice sent its second response approximately three months later on 11 March 2021. The response again signposted Miss O to us if she wished to escalate her concerns.
18. Miss O continued to pursue her complaint locally. On 18 March she sent an email to the Practice to say she was not happy with the second response as it had not fully addressed her concerns and she would be sending a further email escalating her complaint. She also asked further questions in the email. The Practice acknowledged Miss O’s email on 31 March and answered the further questions Miss O had raised.
19. On 24 April Miss O contacted the Practice again by email advising of what she considered was outstanding from the Practice response from 11 March. The Practice sent its final response on 8 June saying it had nothing further to add and referred Miss O to us if she was not satisfied with the outcome of her complaint.
20. Miss O sent a further email to the Practice on 22 July to say she was not happy with the response to her complaint, and she would be taking further action. She also said she was going to register with a new GP.
21. No further correspondence was offered from the Practice after this point.
22. Miss O then sent her complaint to us on 9 February 2022. This was eight months after the Practice’s 8 June response and five months outside of our time limit.
Miss O’s explanation of the delay
23. In line with our own policy, we contacted Miss O by email on 8 September 2022 explaining the legal time limits and asked her the reasons why she delayed bringing her complaint to us.
24. We received a reply to our email from Miss O the same day explaining the following reasons for her delay.
25. Miss O said between September 2020 and July 2021 she spent a lot of time attempting to see if the Practice could provide a satisfactory resolution. She said it was in its email dated 8 June 2021 that it became apparent that the Practice were not going to take any further action, so it was at this point that Miss O decided to contact us. Miss O says she did not feel it appropriate to contact us until she had given the Practice the opportunity to resolve it themselves.
26. Miss O said this meant her contacting us on 9 February 2022. She says this was around eight months after the final response from the Practice on 8 June 2021, meaning that it is well within the legal time limit of one year. For our primary investigation we note this understanding to be incorrect. A complainant has one year to raise a complaint from the date they knew of a reason to complain, not from the date of completing local resolution.
27. We also spoke to Miss O a further time on 6 October 2022 to clarify what the law says and explain to Miss O unless she had exceptional reasons for delaying in bringing her complaint we may not be able to consider her concerns.
28. Miss O said she was following guidance on our website which says a complainant must give the organisation the opportunity to respond to the issues raised.
29. We asked Miss O specifically about the eight month delay in raising her complaint from 8 June 2021 to 9 February 2022. This is because if she had complained to us soon after the final response on 8 June and before 23 September 2021 her complaint would have been within the legal time limit, and we would have been able to lawfully consider it.
30. Miss O said she considered her complaint was from the date of the final response from the Practice on 8 June 2021.
31. Miss O said she was preparing her complaint, and this took a considerable amount of time as she was getting the complaint history into date order, and all copied into one document. Then she found she could not add this to the online complaint form.
32. We asked if there were any other factors to have prevented Miss O from complaining to us sooner.
33. Miss O said her mental health deteriorated after the Practice had sent its final response and she could not achieve a local resolution, and this caused a delay in sending her complaint.
34. We asked Miss O if she had help in making her complaint from an advocate. Miss O said she had not and she was not aware of how to access this service. However, she did say she was awaiting support from close family members in sending her complaint to us.
Our consideration of Miss O’s explanation for the delay
35. We have carefully considered the reasons Miss O has explained for the delay in bringing her complaint to us.
36. The expectation is a complaint must be made to the Practice and then to us within one year from the date Miss O became aware of the concerns, which would be 23 September 2021. On her complaint form, Miss O complained about her consultation at the Practice on 22 September 2020 and the comments made on a hospital referral form, which she became aware of on 23 September 2020.
37. We would expect a complainant to make necessary enquiries about the complaint process and any deadlines or conditions of the complaint.
38. From the information provided we can see Miss O thought she could raise a complaint to us within a year of receiving the final response from the Practice but this is not the case.
39. We recognise the impact this has had on Miss O, and that she was trying to get her complaint resolved locally. However, she had been made aware of our service in the responses from the Practice on 27 November 2020, 11 March and 8 June 2021 but did not contact us or appear to make any enquiries until we received her complaint form on 9 February 2022.
40. The complainant is responsible for making themselves aware of our time limits and ensuring we have received their complaint within the legal time. Therefore, we would expect Miss O to be proactive in progressing her complaint to us.
41. Regarding the complexity of the complaint and preparation needed to get this ready for us to look at, based on other complaints we receive and the work that we do, we do not consider a five-month delay to be justified. The complaint issues relate to poor communications, poor complaint handling and one final point on what was written in a referral. We make a distinction as this was not a complaint relating to a long and complex period of care, involving multiple departments and specialisms with clinical complexity.
42. During our telephone call to Miss O we explained that we do not expect a complainant to prepare a complaint file for us. All we need is confirmation the complainant has raised their concerns to the organisation and received a final response to show its complaint procedure had been exhausted, with a brief summary of the complaint written on our complaint form.
43. We understand Miss O experienced a decline in her mental health following the events complained about and the ongoing complaint process. We asked how this had affected her everyday life and if she had taken medical advice about this. Miss O explained she had been to her GP but had not accepted any medication or therapy treatment to help improve her mental health. Miss O said she had continued to work, but she found some days more difficult than others.
44. While we are sorry to learn of the impact on Miss O’s mental health, from what Miss O told us we think she would have still had a period from June to September to raise the complaint with us. We are not persuaded Miss O’s mental health prevented her from bringing her complaint to us within our time limit.
45. We understand Miss O wanted support from her family members to help her making a complaint. We can see Miss O’s mother helped her very promptly in September 2020 when the event complained about happened. However, Miss O did not explain further what factors caused the delay in getting this support from her family for eight months from June 2021 to February 2022. And Miss O said she had collected the complaint documentation and sent it herself, so we do not consider Miss O needed a high level of support to complain to us.
46. We recognise Miss O was deeply distressed by the events and understand she feels very strongly about the concerns she has raised with us. However, having considered the reasons provided, we are not persuaded that these individually, or together, justify the delay. We can see Miss O was extremely engaged several times when pursuing the complaint at a local level with the Practice. Then from its final response on 8 June 2021, for approximately eight months we cannot account for the delay and the window to bring a complaint to us was missed. Therefore, without reasons to justify this delay, we consider her complaint to be out of time and we will take no further action.
47. We would like to thank Miss O for bringing her complaint to us for our consideration and wish her well for the future.