Section 113(2) of the Health and Social Care (Community Health and Standards) Act 2003 (CHSA 2003) confers power on the Welsh Ministers to make regulations about the handling and consideration of complaints about:
• the exercise of any of the functions of a Welsh NHS body,
• the provision of health care by or for a Welsh NHS body,
• the provision of services by a Welsh NHS body or any other person in pursuance of arrangements made by the body in relation to the exercise of the health-related functions of a local authority under section 33 of the National Health Service (Wales) Act 2006 (NHSWA 2006), and
• provision of redress by or for a Welsh NHS body under the NHS Redress (Wales) Measure 2008 (see below).
For these purposes, a Welsh NHS body is defined by section 148 of CHSA 2003 as:
• a Local Health Board (LHB),
• an NHS trust, all or most of whose hospitals, establishments and facilities are situated in Wales,
• a Special Health Authority performing functions only or mainly in respect of Wales.
The power conferred on the Welsh Ministers by section 113 is a wide-ranging power to make provision about complaints about NHS primary care provided by, amongst others, GPs, dentists, pharmacists and opticians, NHS hospital care and care provided by Welsh NHS bodies or any other person under arrangements made under section 33 of NHSWA 2006.
Section 113(3) of CHSA 2003 provides that regulations made by the Welsh Ministers may provide for a complaint to be considered by one or more of the following:
• an NHS body (defined by section 148 as an English NHS body, a Welsh NHS body, or a cross-border body),
• an independent lay person,
• an independent panel established under the regulations, or
• any other person or body.
For the purposes of CHSA 2003, an English NHS body means:
• an NHS trust, all or most of whose hospitals, establishments and facilities are situated in England,
• the National Health Service Commissioning Board,
• a clinical commissioning group,
• an NHS foundation trust,
• a Special Health Authority performing functions only or mainly in respect of England.
Section 115 of CHSA 2003 sets out the matters which may be covered by the regulations made under section 113(2) and include:
• who may complain,
• the complaints which may, or may not, be made under the regulations,
• the persons to whom complaints may be made,
• the procedure to the followed in making, handling and considering a complaint etc.
In addition to ‘pure complaints’, the Welsh Ministers also have powers, pursuant to the NHS Redress (Wales) Measure 2008 (NHSRWM 2008), to provide redress. NHSRWM 2008 provides a framework for Welsh Ministers to make regulations to establish a system for the provision of financial compensation and/or packages of care and independent legal advice for persons who have suffered negligent treatment that has been provided or commissioned by LHBs or NHS Trusts in Wales. Such arrangements are known as ‘redress arrangements’.
The National Health Service (Concerns, Complaints and Redress Arrangements) (Wales) Regulations 2011 (SI 2011/704) (CCRAWR 2011) were made in exercise of the Welsh Ministers’ powers under CHSA 2003 and NHSRWM 2008. The regulations set out the process for making NHS complaints in Wales and access to the redress arrangements.
Currently, these redress arrangements apply to lower value claims worth up to and including £25,000 relating to care provided by LHBs and NHS Trusts in Wales, and to care commissioned by these bodies from English NHS bodies, Scottish NHS bodies and Northern Irish Bodies (all as defined in CCRAWR 2011). The redress arrangements do not currently extend to care provided by primary care providers.
Section 187 of NHSWA places a duty on the Welsh Ministers to arrange independent advocacy services in relation to health service complaints relating to Wales. These advocacy services are currently provided by Community Health Council for persons aged 18 and over and by LHBs for children. This also covers assistance with complaints to the Public Services Ombudsman for Wales.