Carrying out the investigation

Being thorough and fair

• Organisations make sure all staff have the appropriate level of training, skills and authority to look into complaints thoroughly.
• Organisations make sure all staff who look at complaints have the appropriate resources, support and protected time to consistently meet these expectations.
• Staff discuss timescales with everyone involved in the complaint and agree on how people will be kept informed throughout. They provide regular updates, as agreed with the parties, throughout.
• Staff look for ways they can resolve complaints at the earliest opportunity.
• Staff make sure everyone involved in a complaint (including those specifically complained about) knows how they will look into the issues. This includes what information complaints staff will need, who they will speak to, who will be responsible for providing the final response and how they will communicate their findings.
• Staff give everyone involved in a complaint the opportunity to give their views and respond to emerging information where appropriate. They take everyone’s comments into account and act openly and transparently and with empathy when discussing this information.
• When a complaint does not suit early resolution and needs more detailed consideration and investigation, this is done fairly. Where possible, staff who have not been involved in the issues complained about should look at the complaint. If this is not possible, the person looking into the complaint should openly demonstrate they are acting fairly when they consider all the issues.

Giving fair and accountable responses

• Staff give a clear, balanced account of what happened based on established facts. Each account compares what happened with what should have happened. It clearly references any relevant legislation standards, policies or guidance, based on objective criteria.
• In more complex cases, staff make sure they share their initial views on a complaint with everybody involved and give people the opportunity to respond. Staff take any comments into account in their final response to the complaint.
• Organisations support and encourage staff to be open and honest when things have gone wrong or where improvements can be made. Staff recognise the need to be accountable for their actions and to identify what learning can be taken from a complaint. They are clear about how the learning will be used to improve services and support staff.
• Wherever possible, staff explain why things went wrong and identify suitable ways to put things right for people. Staff give meaningful and sincere apologies and explanations that openly reflect the impact on the individual or individuals concerned.

At the time it acknowledges the complaint, the responsible body must offer to discuss with the complainant, at a time to be agreed with the complainant—

• (a) the manner in which the complaint is to be handled; and
• (b) the period (‘the response period’) within which—
  • (i) the investigation of the complaint is likely to be completed; and
  • (ii) the response required by regulation 14(2) is likely to be sent to the complainant.

(8) If the complainant does not accept the offer of a discussion under paragraph (7), the responsible body must—

• (a) determine the response period specified in paragraph (7)(b) and
• (b) notify the complainant in writing of that period.’

Regulation 14(1) states that: ‘A responsible body to which a complaint is made must—

• (a) investigate the complaint in a manner appropriate to resolve it speedily and efficiently; and
• (b) during the investigation, keep the complainant informed, as far as reasonably practicable, as to the progress of the investigation.’

With reference to the time period for investigation, regulation 14 paragraph (3) says here is a “relevant period” for handling a complaint.

This means: ‘the period of 6 months commencing on the day on which the complaint was received, or such longer period as may be agreed before the expiry of that period by the complainant and the responsible body.

(4) If the responsible body does not send the complainant a response in accordance with paragraph (2) with the relevant period, the responsible body must—

• (a) notify the complainant in writing accordingly and explain the reason why; and
• (b) send the complainant in writing a response in accordance with paragraph (2) as soon as reasonably practicable after the relevant period.’

The first step is to take the time to fully understand:

• the complaint
• what you are investigating
• the outcome the person making the complaint is looking for.

If you don’t invest the time and do this at the start, problems can start right from the beginning. If you invest time at the start, you can avoid problems arising later on.

Find out more 
See our guide on this very important step: A closer look: clarifying the complaint.

Having an investigation plan will help you stay focused and make sure you do not miss anything crucial. It will help you keep track of progress and stay on top of timescales so you can adjust schedules and update everyone involved.

Tips for making a good plan:

• focus on the matters you are investigating.
• use resources effectively and proportionately.
• work cost effectively, while still meeting customer service and legal requirements.
• discuss your plan with colleagues and seek the views of others involved in investigating the complaint, to make sure your plan is robust.
• for straightforward, single-issue investigations, you can make your plan quickly.
• for an incident that involves serious failings or numerous issues, invest time in more detailed planning, in discussion with colleagues who will help with your investigation.
  • share the outline of your investigation plan with:
  • the person making the complaint
  • their advocate (if they have one)
  • any member(s) of staff complained about.
• ask them if they think you have missed anything and consider their comments and suggestions before finalising your plan.

This step-by-step guide will help you develop a good investigation plan.

• Once you’ve established the specific points of the complaint and what outcomes the person is hoping for, use these to focus the scope of your investigation.
• You can delegate the investigation, or any part of it, to any complaints leads in your organisation who have specific knowledge of the service area you are investigating. But you are responsible for overseeing the overall investigation.

Tip: Asking the right questions
A good investigation starts with a thorough review of the circumstances complained about. Your aim is to answer these questions:
- What happened?
- What should have happened?
- If there is a gap between these, why was this?
- What impact did the failings have on the person making the complaint?
- How might that impact be put right for the person and others who may be similarly affected?

Base your conclusion on an objective analysis of the evidence and explain this analysis clearly.

To find out what happened, the evidence you gather could include:

• evidence from the person making the complaint to support what they say
• evidence from witnesses to the events
• staff interviews, statements and evidence to support what they say
• information from relevant clinical records
• information from other sources if necessary (for example, CCTV or phone records). 

Tip: Using the ideas in this list as a starting point, think through what evidence could help you in your investigation. Whenever you share and update your plan (and any updates), talk to everyone involved about what evidence you are looking at and ask if they think anything is missing.

To find out what should have happened, gather evidence such as:

• national policies, standards, procedures and guidance
• local policies, standards, procedures and guidance.

If the complaint involves clinical matters, you should find out your organisation’s view of whether the care or service provided was appropriate and in keeping with the relevant standards, procedures, policies and guidance. This should be provided by someone who is suitably qualified and has not been directly involved in the person’s care.

Make sure the person who made the complaint, and anyone they have complained about, has the opportunity to:

• say what they believe happened in relation to the complaint
• provide evidence to support what they say
• say whether they agree with any initial findings before you reach a conclusion.

Try not to prejudge the outcome or favour the complainant or anyone they have complained about.

As the person investigating the complaint, you should not have been involved previously in the issues being complained about, as far as possible. If this is not possible, you need to be open about this from the start.

Explain to the person making the complaint that you will:

• investigate fairly
• make sure you provide a balanced account of what happened
• reach conclusions based only on the evidence.

The Francis Report recommends that hospitals (and ideally, other organisations) always use an independent investigator – in other words, someone from outside their organisation – in the following circumstances:

• where a complaint amounts to an allegation of a serious untoward incident
• where questions involving clinically related issues cannot be resolved without expert clinical opinion
• where a complaint raises substantive issues around professional misconduct or the performance of senior managers
• where a complaint raises issues about the nature and extent of the services commissioned.

Tip: Finding an independent investigator can take time to arrange. That's why it is a good idea to put in place agreements with other organisations so you can provide support and independent investigations for each other if the need arises.

Checklist: Keeping people updated

• Give anyone who has made a complaint, and anyone who has been complained about, the chance to submit relevant information and evidence.
• Keep them informed and updated throughout the process.
• Before you issue a final response, give them the opportunity to comment on any initial findings. Consider their comments before you reach a conclusion.
• Make sure the person making the complaint, and anyone they complain about, knows how to get help and support during the process if they need it.
• Make sure the person making the complaint is aware of your local independent NHS complaints advocacy provider (or any relevant national support organisations).
• Make sure anyone complained about is supported through the process and has access to a named contact who can help them, if they need this. This may be their line manager but should not be the person who is responsible for investigating or making decisions about the complaint outcome.

Did something go wrong?

Your need to identify if something went wrong or not and be clear about how you reached that conclusion.

• If there is conflicting evidence or uncertainty about what happened, consider whether something is more likely than not to have happened, based on the balance of probability.
• If there is not enough evidence, or the evidence is so equally balanced that you cannot reach a view, explain clearly why this is the case, setting out all the evidence you have considered.

What should have happened?

• It is not enough just to explain what happened. You also need to determine what should have happened in the situation.
• Then, compare the two, to see whether there is a difference and whether anything went wrong. (You need to base this on evidence, not opinion.)

To determine what should have happened, you will probably be looking at things like:

• legislation, statutory powers and duties
• nationally recognised policy, guidance or standards
• local policies and procedures
• relevant professional standards
• any other recognised standards that were in place at the time of the events being complained about.
• Identify whether there was a gap between what happened and what should have happened. This is done by comparing what happened against the standards that relate to the case.

Tip: In cases involving clinical care, you will probably need to seek a view on the matter from a suitably qualified clinician who has not been directly involved in the care provided. Any advice must be based on relevant standards, policies and procedures. To find out more, go to The Ombudsman’s Clinical Standard.

If your investigation has found that something went wrong, you need to consider how this affected the person complaining.

• Assess what impact the failing had on the person making the complaint. This will help clarify what you are seeking to put right.
• Think about whether the failings you have found could affect other service users, or services that your organisation provides, in the future.

At the beginning of your investigation, you will have discussed the impact with the person who made the complaint, and they will have told you how they feel they have been affected.

• Now consider if their view is accurate or whether there are wider issues that they are not aware of.

The impact of something going wrong could include:

• inconvenience and distress – possibly caused by:
  • cancellations
  • failures or delays in service provision or decision making
  • failures in communication
  • unreasonably prolonged complaint handling
• being denied an opportunity – for example, to make an informed choice because they were not given the full facts or did not have the risks explained to them (such as when consenting to surgery or making decisions about care). This could lead to a lost opportunity for a better outcome, recovery or prognosis, or cause unnecessary or additional surgery or treatment
• physiological injustice – for example, minor pain, harm, or permanent or serious injury
• bereavement – including avoidable death, a poor standard of care, or poor communication with family when a patient died
• loss through actual costs incurred – for example, care fees, private healthcare or loss of benefits
• other financial loss – for example, loss of a financial or physical asset (such as loss or damage to possessions), reduction in an asset’s value, or loss of financial opportunity.

Tip: Treat this list as a starting point. If you need to, talk further with the person making the complaint (or the person who has been directly affected) to make sure you have understood the impact fully.

By this point, you should have identified whether something has gone wrong. If it has, you will have a good idea of what impact it has had. You will now be thinking about what you need to do to put that right.

• Before you reach a conclusion, consider giving the person making the complaint, and anyone who has been complained about, a chance to comment on your initial findings. This helps ensure you have acted fairly.

In making this decision, it is important to be proportionate.

• In more complex cases (such as cases with multiple issues or covering complex clinical matters) or where the claimed (or identified) impact is significant, you should always share your initial views.
• For more straightforward cases (for example, complaints covering single issues, or where the impact is minor) it may not be necessary.

Always consider the best approach for each case, in the interests of fairness and transparency. Remember, the reason for doing this is to make sure:

• you have not missed anything
• you consider any final thoughts and comments before you issue a final response.

Tip: If you decide to share your initial views, do it by phone, email or meeting, in line with the person’s communication preferences. You may also want to share a draft of your final response letter.