14. The NHS guidance on complaining explains (section 7) that a complaint must be made not later than 12 months after the date on which a person knew of a reason to complain and that if a complaint is made after this and the NHS do not see a good reason to consider delays, the service may not look at the complaint.
15. Similarly, The Health Service Commissioners Act of 1993 (the law) says a person needs to make their complaint to the Health Ombudsman within a year of becoming aware of the problem they wish to complain of. By law, we are prevented from investigating complaints brought to us after one year, unless we consider there is a good reason that justified the delay in a complaint being raised within twelve months.
16. These points are referenced in our own policy guidance which informs our approach to decision making to ensure consistency in the work we do; that a complainant must raise their complaint to the NHS within a year of being aware they had reason to complain.
17. We begin by considering each stage of the complaint to identify any delays. We engage with the complainant to understand the reasons for any delays, this allows us to understand the time taken for the complainant to take action to make their complaint, and the circumstances that caused their delay so we can assess reasonableness. We also consider the delays of the organisation.
18. There is no exhaustive list of reasons that could delay a complaint, we take this consideration on an individual case by case basis. Where we identify delays, if we consider the reasons with justification, we may then go onto consider waiving some or all of the time limit as the Ombudsman has this discretion to do so.
19. Having explained the process, we next go onto establishing a summary of the delays. We have identified the following periods of time and delays in the complaint process.
Timeline of the complaints process
20. Mrs A went into hospital for induction of labour on 3 November 2019. The same day a midwife instructed her to remain on her back in bed or they would be unable to monitor her baby’s heartbeat. Mrs A tells us being unable to move caused her extreme discomfort and distress whilst she was lied there as she would not normally remain on her back whilst in bed.
21. Whilst we recognise Mrs A may not have questioned the midwife’s instructions at the time, it is clear she was aware of how she was being affected and the concerns and discomfort this was causing. Therefore, this is the date (3 November 2019) by which we take Mrs A knew a problem to complain about occurred. We refer to this as the ‘date of knowledge’.
22. Then, 47 months passed, and we can see Mrs A raised her complaint to the Trust in October 2023. She approached us on 19 October and explained the Trust had verbally informed her it could not investigate her complaint as it was out of time. Enshrined within the NHS complaint policy it states an NHS organisation has the right to decline a complaint if made to it outside of the 12-month period to complain and there is not considered a good reason to have caused the delay.
23. We advised Mrs A to ask for the Trust’s decision in writing. The Trust’s provided its response on 22 November.
24. Mrs A returned to us on 29 November 2023. This was a delay of around seven days from receipt of the Trust’s response.
25. Based on the dates provided, specifically from the date of knowledge (when Mrs V knew of a reason to complain) to be within the twelve-month Health Service Commissioners Act requirement, Mrs A should have submitted her complaint to the Ombudsman by 3 November 2020. We received Mrs A’s complaint on 19 October 2023. This shows the complaint is out of time by around 35 months.
Our consideration of the delays
26. Mrs A gave her date of awareness as September 2023. The events took place 3 November 2019. She tells us she did not question the midwife’s instructions at the time and was unaware that something had gone wrong until she later saw a video of another woman’s birthing experience on social media much later than the event.
27. We accept that Mrs A was unaware of the other woman’s experience during the period of complaint. We do not feel this meant she was unaware of issues with her care.
28. Her description of how having to remain on her back in bed affected her and the other points of care around pain management suggests she was unhappy with the clinical instruction and advice at the time.
29. We considered if Mrs A would have continued to accept her care was appropriate for the entirety of this period November 2019 to September 2023 without knowing something was wrong to complain of until seeing a video of another birth. We are not persuaded this to be the case as from her complaint Mrs O explains events at the time (midwife’s actions) prevented her from having the natural birth that she wanted. We do not consider Mrs A was unaware these events prevented a natural birth until around three years later and that as the course of her planned birth changed, Mrs A was aware something was not right or had deviated from her intended care or gone wrong.
30. We then go on to consider the complaints process and any delays incurred by all parties, by this we mean by the complainant and other organisation(s) involved in a complaint. Or, on occasions, delays incurred by advocates or personal representatives.
31. Where we identify delays, we then go onto consider the reasons for this and if those reasons justify delays. There is no exhaustive list of reasons, and we consider these on a case-by-case basis. If we consider reasons justify a delay, we may then go onto waive the time limit at the Ombudsman’s discretion.
Delays associated with the Trust
32. The NHS Complaints Policy says organisations aim to respond to complaints within 40 working days. However, this is on a case-by-case basis as there are no guarantees to complaint handling times. Though we do recognise within the NHS Regulations (2009), it states if a complaint is not resolved within six months the organisation should then write to the complainant and explain what is occurring and what they are doing to address matters.
33. It is not clear from Mrs A’ account of events when she first raised concerns with the Trust. On balance of probabilities, given the timeline of her contact with us, we consider it is likely this was at some point early or prior to the Trust response November 2023 and after seeing the video in late 2023.
34. The Trust issued a written response on 22 November 2023. Prior to this it addressed Mrs A’ concerns via email. Overall, it took the Trust less than two months to complete local resolution. This was well within the six-month target for response set out in the NHS complaints policy.
35. We do not consider the time it took the Trust to respond to the complaint was significant, protracted nor delayed matters. Even if the Trust had responded sooner, the complaint would still be out of time as it was time taken prior to complaining which caused most of the delay.
36. Similarly, we note the Trust declined to look at the complaint and as we have outlined in the NHS guidance on complaint handling, this decision is within their scope of handling if the Trust consider delays significant and not justified.
Delays in progressing the complaint by Mrs A
37. We next considered the delays in Mrs A progressing her complaint from her date of awareness of her concerns.
38. Mrs A complained to the Trust in or around September to October 2023. This was a delay of approximately 47 months from the date Mrs A knew of a reason to complain and was 35 months outside of the NHS guidance to complain within a year.
39. Mrs A says after seeing the social media post in September 2023 she reflected on her experience and began to feel she had been a victim of poor professional conduct.
40. We asked Mrs A how she came across this post and what caused her to seek this out. She explained she came across it by chance on social media and was not actively searching for it.
Consideration of reasons for delay
41. Mrs A tells us on 3 November 2019 the midwife told her she would have to stay lying in bed on her back. She says whenever she tried to change position the midwife said she should not move and so she stayed still on her back for around ten hours.
42. Mrs A says she was very uncomfortable during the period of complaint. She explains she normally moves around in bed and hates being on her back. She said she would never be comfortable lying on her back for that long.
43. Mrs A tells us she did not question the midwife’s instructions on 3 November 2019 and was not unhappy with the care at the time. She feels she was unable to complain to the Trust prior to seeing the social media post, as she has no knowledge of policies around labour and assumed what the midwife said was correct.
44. We accept Mrs A was unaware of the other woman’s birthing experience until September 2023. Whilst we accept this may have meant she did not fully understand what should have happened, we have to consider for the totality of the period November 2019 to October 2023 to raise a complaint, did these matters prevent complaining consecutively for each day.
45. It is clear from Mrs A’s account of events that having to remain on her back for an extended period of time made her deeply uncomfortable. She feels the midwife’s actions led to her having an unnecessary assisted delivery when she had planned for a natural birth. We are not persuaded she only became unhappy with the care she received in September 2023.
46. Mrs A feels the primary reason for her delay was being unaware something had gone wrong. Whilst the social media post she describes gave her new information about another woman, her account of events suggests she was fully aware of what happened with her care and how it affected her in November 2019.
47. We do not consider being unaware of the other woman’s birthing experience prevented her from complaining to the Trust and subsequently us within the relevant time limits. By this we mean that we are not persuaded Mrs A thought nothing had gone wrong or was not right during the birth until she was able to compare her experience to another person’s experience some considerable time later.
48. In conducting our work, we have identified Mrs A’s complaint to be 35 months out of time. For us to put aside such a significant delay, we would need to see that exceptional circumstances had prevented Mrs A from coming to us sooner.
49. We have engaged with Mrs A to understand her reasons for the delay, and though we recognise she feels she did not have enough information to make a complaint, it is our view the reasons given do not persuade us for the entirety of the delays on Mrs A’s account, as we have seen during this period she was fully aware of what happened with her care during this period.
50. Whilst we recognise Mrs A feels she was unable to make a complaint sooner, we are not persuaded that she was prevented from coming to us in time. We consider the significant delays were because Mrs A chose not to complain to the Trust.
51. As such, we think Mrs A could have approached us with her complaint much sooner than October 2023. She has not presented us with any information that suggests she was prevented from doing so.
52. On this basis, we consider Mrs A’s complaint is out of time and we have not seen good reason to set this time limit aside.
53. We are thankful for Mrs A bring her complaint to us.