Getting support when things go wrong with healthcare

Health professionals working in the NHS have a duty to discuss a patient’s condition and treatment in clear accessible language to ensure that you and your loved ones understand what is happening at all stages. Health professionals should also listen to your concerns and respond appropriately to any questions you may have.

However, meningitis is a complex disease and sometimes you may wish to speak with someone to discuss it further.

Meningitis Research Foundation helpline staff can also help you understand the illness, its potential consequences and answer general questions about treatment.

Hospital Treatment

If you are worried or concerned about the level of communication you are receiving from health professionals or the treatment you or a loved one are receiving, the NHS in England has a specialist service to assist you. The Patient Advice and Liason Services (PALS - see Help with Complaints) can help with concerns or problems, and help to ensure that NHS staff listen to patients, answer their questions and resolve any issues as quickly as possible.

GP Treatment

If you have a problem with your GP, speak to them in the first instance. If you feel unable to do this or it hasn’t worked, speak to the practice manager to raise your concerns and consider submitting a formal complaint to them.

Different organisations have responsibility for patient advocacy in Scotland, Wales and Northern Ireland (see Help with Complaints)

If you are unhappy with the service you or a loved one has received there are a number of ways to try and resolve your concerns. The two main ways of doing so:

• Make a complaint; or
• Make a clinical negligence claim.

These two options serve different functions and it is important to understand what the most appropriate course of redress is for you.

Making a complaint

You may wish to bring a complaint if you are disappointed with the quality of care you received, the behaviour of a health care professional or if you experienced delays in treatment. 

A complaint can either be made informally through patient advocates such as The Patient Advice and Liaison Service (PALS) in England – or counterpart services in Wales, Scotland and Northern Ireland detailed below - or formally through the NHS complaints procedure.

As a general rule, the complaints system will not award any compensation. Compensation can only be sought through a legal claim. See Making a Claim for more information.

It is best to make your complaint in writing so you have a record of your concerns. It is also recommended to make a note of the relevant events, dates, times, names and conversations to help you remember all the details in the future.

If you want to make a formal complaint about an NHS service, ask the service for a copy of their complaints procedure which will explain what you need to do. Every NHS organisation has a complaints procedure but they are all run differently. Procedures also differ depending on location in the UK. Further information can be found via the following links:

For England  https://www.nhs.uk/nhsengland/complaints-and-feedback/pages/nhs-complaints.aspx

For Northern Ireland https://www.nidirect.gov.uk/articles/make-complaint-against-health-service

For Scotland https://nhsnss.org/contact-us/complaints/

For Wales http://www.wales.nhs.uk/ourservices/publicaccountability/puttingthingsright

• In England and Wales a complaint should be made within 12 months of the event, or of realising there was an issue you want to complain about.
• In Northern Ireland and Scotland a complaint should be made within 6 months of the event or of realising there was an issue to complain about, but not longer than within 12 months after the event.

If you decide to make a complaint there are organisations that will help guide you through the process.

England

Patient Advice and Liason Service (PALS)

All NHS Trusts in England have a PALS department to provide information, advice and support to patients and their families. PALS officers are employed by the NHS trusts to assist patients with problems and assist with early resolution of disputes. As NHS employees, they often understand how things work in your hospital and therefore have an inside track for presenting your concerns.

See the PALS pages on NHS Choices or to find your nearest PALS office or by phoning NHS111. You can also find PALS offices in most hospitals. 

Healthwatch

Healthwatch is a national independent champion for users of health and social care in England. It ensures that the experiences of consumers are considered by those who plan and run services, and gathers evidence to influence national health policy to improve services.

Healthwatch has a network of local organisations who may be able to assist you with your complaint. Different local Healthwatch organisations have different powers: some can only give advice and support whilst others may be able to advocate for you. More information can be found on their website https://www.healthwatch.co.uk/home  

NHS complaints advocacy services

NHS advocacy services are commissioned by local authorities in England. The largest providers of these locally commissioned advocacy services are:

• POhWER mainly for the East of England and the Midlands
• SEAP (Support Empower Advocate Promote) mainly for South East and South West England
• The Carers Federation mainly for the North East, the North West and Yorkshire and Humberside
• Voicability mainly for London Boroughs

Details of your local NHS Complaints Advocacy service can be sourced from your Local Authority or through PALS.

Scotland

Patient Advice and Support Service (PASS) 

PASS is an independent service which provides free, confidential advice and support to patients, their carers and families about NHS healthcare. The service is provided by the Scottish Citizens Advice Bureau. PASS can explain the rights and responsibilities of patients and it advises and supports people who want to give feedback, raise concerns or make a complaint about treatment and care provided by the NHS in Scotland. It provides practical help with making a complaint, including writing letters, making phone calls and supporting people preparing for or attending meetings. https://www.cas.org.uk/pass

Wales

Patient Advocacy services are available through Community Health Councils across Wales. They aim to provide help and advice if you have problems with - or complaints about - NHS services or your NHS practitioner. They also help ensure that patient perspectives influence local health policies and plans, monitor the quality of NHS services from your point of view, and can give you information about access to the NHS. http://www.wales.nhs.uk/sitesplus/899/home

Northern Ireland 

The Patient and Client Council helps people who want to complain about any aspect of health and social care in Northern Ireland. They will tell you how to complain and who to complain to, help write letters of complaint, make telephone calls for you about your complaint, go with you to meetings about your complaint and make sure your concerns are heard and responded to. They also work with health and social care organisations to improve services as a result of your concerns.

The service is independent, confidential and free. They cannot investigate complaints, or offer medical or legal advice. http://www.patientclientcouncil.hscni.net/

The complaint will first be assessed at a local level – meaning it will be considered by the relevant NHS trust who were responsible for your care.

Once you have made your complaint it should be acknowledged by the NHS within 3 working days.

The NHS complaints policy states that a person who has made a complaint can expect to be kept up to date with its progress. A response should be provided within 40 working days, but in the event that the NHS are unable to comply with this target, you should receive an update every 10 working days after this point.

The response you receive from the NHS should include:

• An explanation of how the complaint has been considered
• An apology if appropriate
• An explanation based on facts
• Whether the complaint in full or in part is upheld
• Conclusions reached, including any possible remedial action
• Confirmation that the organisation is satisfied that any action has or will be actioned
• Information and contact details of the Parliamentary and Health Service Ombudsman as the next stage of the NHS complaints process.

If you are unhappy with the response received, you can write another letter or phone to explain why you are not satisfied, or you can proceed to stage two and ask for an independent review by the Health Service Ombudsman in your UK country. 
 
Parliamentary and Health Service Ombudsman (England) 
Scottish Public Services Ombudsman 
Public Services Ombudsman for Wales
Northern Ireland Ombudsman 

To bring a claim for compensation there has to be negligent treatment, not just an undesirable outcome. Compensation is not available purely because you or your loved one was left with injuries or disabilities after the illness, or because the outcome of a medical procedure was not as expected. Medical treatment can go wrong and the outcome of meningitis or septicaemia can be devastating even when no one is at fault. Even if it is clear that healthcare was negligent, the failure in care must have caused or contributed to the injury or death of the patient for a claim to be successful.

Clinical negligence refers to a failing or mistake on the part of a health professional, most frequently a GP or hospital. The purpose of a clinical negligence claim is to compensate a patient or their family for loss they have suffered due to a professional’s negligence.

In order to bring a claim in clinical negligence, three tests have to be satisfied: Breach of Duty, Causation and Loss.

1. Breach of Duty

Medical practitioners owe their patients a duty of care. In order to pass the first test to demonstrate negligence, a patient must show that the medical professional failed to exercise this duty of care to a sufficient standard, and is otherwise known as breach of duty. The most likely breach of duty in meningitis cases would be a failure to refer a child to hospital; or failure to run adequate tests and start treatment based on presenting symptoms.

To establish whether a breach of duty has taken place, under a key piece of case law known as the “Bolam Test” it must be shown that the investigation or treatment fell below the standard of a reasonably competent practitioner, in the relevant field, practicing at the relevant time. In other words, would another health professional of the same specialist area, presented with the same facts and symptoms, at the same time, have made the same decisions?

If it can be shown that a reasonably competent professional complying with all the above criteria would have acted in the same way, then breach of duty cannot be established and this acts as a defence to negligence. If they would have acted differently, then the first hurdle is satisfied and we move on to the next test for negligence: causation.

2. Causation

Causation refers to the need for the breach of duty to have caused an injury or adversely affected a patient. In order for a claim to be successful, it has to be shown that the outcome for the patient is worse than it would have been had they received the correct treatment.

An example of this would be a delay in diagnosis of meningitis; if a GP failed to make an early referral to a hospital when a child presented meningitis symptoms, this may be negligence on their part. However, if the child’s parent took the child to A&E half an hour later and the child goes on to make a full recovery, the outcome will not be worse for the child, meaning the test for causation will not be satisfied.

If, however, the child worsens overnight, an ambulance is called and as a result of the delay in receiving relevant treatment the child goes on to develop epilepsy or cerebral palsy, the test will be satisfied as it can be shown that had the child received the appropriate treatment, their outcome would likely have been more positive.

3. Loss

Clinical negligence centres on the idea that a patient who has suffered negligence should be awarded compensation to put them in the same position they’d have been in had it not been for the negligence.

Compensation can be split into two categories: special damages and general damages. See section for more information.

Only you can decide whether to bring a claim for compensation. Many people feel uneasy bringing a claim against the NHS, and often the process of bringing a claim can be time consuming and emotionally difficult.

However, if treatment has been negligent, and you or your family member has been injured or their condition or the outcome of their illness made worse as a result, then you are entitled to compensation. Bringing a claim can provide security for you or your family member to ensure you have the funds to access the best treatment, therapy and care possible. 

Compensation, also known as ‘damages,’ includes both ‘general damages’ and ‘special damages’. ‘General damages’ are to compensate you for pain, suffering and impact on quality of life  - for example not being able to take part in activities and loss of enjoyment - caused by the negligence. ‘Special damages’ are to compensate you for specific financial costs or future losses – for example, loss of earnings, extra medical costs, the costs of equipment needed for living with disabilities, increased accommodation costs, travel expenses, or costs for care and assistance. 

Your specialist solicitor will assemble a team of experts to help understand the injury and the level of compensation that should be awarded. Experts may include surgeons, neuropsychologists, nursing care experts, educational experts, occupational therapists, speech and language therapists, prosthetists, physiotherapists and accountants.

There is a limitation period during which a person must bring a clinical negligence claim. Failure to bring a claim within this time will mean that they are statute barred from doing so. 

For adults, the limitation period is three years from the date of the negligence, or the date that the person became aware that the negligence had occurred, which is known as the ‘date of knowledge’.

If the negligence occurred when the person was under 18, the limitation period will not begin to run until their 18^th birthday. They will have three years from this date in which to bring a claim, meaning that their limitation period will expire the day before their 21st birthday. In Scotland, the time limit is by the child’s 19th birthday if they were under 16 when the incident arose.

Where a person lacks capacity - for example, as a result of a brain injury - the limitation period does not apply and will run indefinitely.

There are exceptions to the limitation rule, though these are complex and strictly applied, and each case will be looked at individually.

If you are concerned that negligence may have occurred, it is always advisable to seek legal advice sooner rather than later, as evidence is likely to be more easily accessible and it can take several months to obtain all the necessary documentation in order to prepare to bring a claim.

There are a number of ways in which to fund a clinical negligence claim including public funding, legal expenses insurance, a Conditional Fee Agreement (“no win, no fee” agreement) and private funding.

Public Funding

This is otherwise known as Legal Aid. Since April 2013, the scope for cases to be funded by Legal Aid is now much narrower. Legal Aid is now only available in cases where:

• the child is severely disabled; and
• the child suffered a neurological injury; and
• the negligence occurred within 8 weeks of the birth.

In the context of meningitis, an example would be if a new born baby contracts meningitis as a result of undiagnosed and untreated group B strep at birth and subsequently suffers a brain injury as a result.

Even if Legal Aid is a possibility, it is not a certainty. If your solicitor thinks that you may be eligible for public funding they must make an application to the Legal Aid Agency, who will take into account a number of factors, such as the strength of evidence, financial circumstances and the degree of injury sustained before deciding whether to grant Legal Aid to investigate the claim.

Legal expenses insurance

Many people have Legal Expenses Insurance (LEI) attached to one of their insurance policies, such as car or home insurance. Sometimes LEI will cover not only the policy holder but his or her family.

Not all polices will cover medical negligence and, as such, it is best to contact your insurance provider to clarify whether you are able to use your existing insurance.

Often, your insurance provider will have a preferred solicitor to whom they will refer you. This is known as the panel solicitor. Regardless of what your insurance provider says, you do not have to use this solicitor. Panel solicitors often do not have the required expertise to deal with a complex medical negligence claims. If you have legal expenses insurance cover, you have the freedom to choose whichever solicitor you wish. If you are concerned about this discuss it with your chosen solicitor who will advise on the next steps to take.

Conditional Fee Agreement 

If there is no LEI or public funding available, your solicitors may consider entering into a Conditional Fee Agreement (“no win, no fee”). As the name suggests, if your case is unsuccessful there should be nothing for you to pay. If your case is successful, your solicitor is entitled to take a percentage of your overall compensation, known as a Success Fee. There is a strict rule that solicitors cannot take more than 25% of past and general damages for the success fee. However, be aware that some solicitors may seek to recover other costs from you. They should be upfront with you about how much this is likely to be, however, always ensure that you are aware of any potential costs and you are comfortable with these.

Your solicitor will look at the information you have provided and will try to make an assessment of the likelihood of your cases succeeding. If this is less than 50% they will not offer you a no win, no fee agreement.

Private funding 

If none of the options above are available, you could opt to pay privately for a solicitor to investigate your case. The solicitor should give you a clear estimate at the outset and agree with you limits for each stage of the case.

However, it is important to remember that if a solicitor is not willing to offer you a no win, no fee agreement it is probably because they are not confident in the prospects of the case being successful, and, as such, it is risky to pay privately.

Clinical negligence cases are long-running and expensive, and it is important to consider whether pursuing a case in these circumstances is in your best interest.

Whatever funding method you are using, it is a good idea to ask whether there is any possibility of being required to pay something during the case or at the end. Different firms offer different arrangements for the same funding method. Some firms expect clients to pay expenses during the case while others will fund these themselves. Some firms also deduct various fees and expenses from the compensation awarded if the claim is successful. If so, you are entitled to an estimate of those fees.

All solicitors accredited by AvMA agree to be open and honest with potential clients from the start about charging policies and means of funding legal work in a way that clients can understand and is in their best interests.

Making a clinical negligence claim can be a daunting prospect. Contacting a solicitor is a big step and talking about your experience of medical care can bring back painful memories.

It is important to consult a firm of solicitors with proven expertise in the field of clinical negligence, recognised by independent bodies such as the Chambers Guide or the Legal 500. This will ensure you get the very best advice and service from the outset.

We are here to help signpost high-quality, specialist legal advice for your purposes. We provide details of a number of leading law firms in the field of claimant clinical negligence from across the UK and Ireland, meaning that you can easily identify specialist legal advice that is local to you.

All firms listed are leaders in their field, all independently accredited by the Chambers and Partners guide. These include Anthony Collins Solicitors, Clarke Willmott and Freeths.

A specialist solicitor will offer:

• A free first interview;
• Straightforward advice on the prospects of success and an estimate of how long the process might take;
• Clear advice on how to fund the claim and how funding works;
• Information on advice from other professionals during your claim and after, for example on disability rights and benefits;
• Knowledge about clinical and rehabilitation needs and the best experts to instruct; and
• Advice, assistance and representation in relation to inquests.

Once proceedings are underway, the process could take several years to complete, so it is important to find a specialist solicitor whose expertise you feel confident about from the outset. You are free to approach and make initial enquiries with more than one firm before deciding who you would like to represent you. 

You are also free to change Solicitors after your claim has started. This is a simple process. With your permission your new Solicitors will contact your previous Solicitors to request transfer of your case. You do not need to speak to your previous Solicitors concerning transfer of your case. 

You can search for clinical negligence specialists on either the Law Society or Action for Victims of Medical Accidents (AvMA) websites. Both websites enable you to search geographically to find a solicitor in your part of the UK.