We concentrate on talking about complaints about treatments that are wholly paid for by you as the patient (or by a family/friend on your behalf), or your private medical insurer and take place in England, Scotland, Wales or Northern Ireland. If your treatment in a private hospital is paid for by the NHS you should complain under the NHS Scheme.

Both NHS and private healthcare providers follow the same Principles of Effective Complaints Handling and both are under the same remit to be as honest (known as the ‘Duty of Candour’) with you as you should be with them. They will both give you open and transparent information about how they will try to reach agreement with you on your complaint.

However, the way private/independent healthcare providers actually treat your complaint may differ from the way it is done in the NHS. These differences mainly arise because of the way doctors and other clinical professionals are contracted to work – like the difference between free market and publicly-funded industry.

If you are thinking of investing your money in private treatment, it is worth asking a few questions about how they will handle a complaint before making any financial commitments.

Learning lessons

Following the conviction of disgraced surgeon Ian Paterson, there was an inquiry (the Paterson Inquiry) to review the circumstances surrounding his misconduct and consider other past and current practices in the NHS and the independent sector. The inquiry aimed to learn lessons from these and to make recommendations to improve the safety and quality of care provided to all patients.

In line with Recommendation 6a of the Inquiry, which stated that information about the means to escalate a complaint to an independent body should be communicated more effectively in both the NHS and the independent sector, the Parliamentary and Health Service Ombudsman (PHSO) has developed the NHS Complaint Standards, which set out the ways in which the NHS should handle complaints, including the need for organisations to ensure that people know how to escalate to the PHSO.

The PHSO good complaints handling principles are fully incorporated into the Independent Sector Complaints Adjudication Service (ISCAS) Code for Handling Patient Complaints.

All patients have rights

The national healthcare inspector in England, the Care Quality Commission (CQC), signposts private/independent healthcare providers to adopt the ISCAS Code, with the result that 97% of independent healthcare providers in England subscribe to ISCAS and use the Code. Scotland, Wales and Northern Ireland have their own regulators, for more information see: https://www.phin.org.uk/help/regulator-ratings.

The Government accepted in principle Recommendation 6b from the Paterson Inquiry which stated: “that all private patients should have the right to mandatory independent resolution of their complaint.” The CQC committed to strengthening its guidance to make clearer that it expects to see arrangements in place for patients to access independent resolution of their complaints regarding independent sector providers.

Every individual private hospital publishes its own arrangements (incorporating the ISCAS Code) for locally resolving a complaint from a patient and will normally seek to satisfy the complainant on the spot. If agreement cannot be found between the patient and hospital or the Group then ISCAS provides the route to independent, third-party adjudication ending in a final decision. Costs are absorbed by the healthcare provider, so this is free to the patient.

ISCAS does not address some types of complaints from private patients. Clinical negligence, clinical mistakes, financial complaints all have their own pathways, explained below.

It is clear that no patient under either national or private constitutions should be denied the right to independent final adjudication of any complaint against a healthcare provider.

Supporting regulations and frameworks

CQC regulations

CQC Regulation 16 intends to ensure that people can make a complaint about their care and treatment. To meet this regulation providers must have an effective and accessible system for identifying, receiving, handling and responding to complaints from people using the service, people acting on their behalf or other stakeholders. All complaints must be investigated thoroughly and any necessary action taken where failures have been identified.

When requested to do so, providers must provide CQC with a summary of complaints, responses and other related correspondence or information.

Any private/independent healthcare provider not subscribing to an external review stage such as ISCAS for complaints and possibly avoiding the requirement to provide a genuine independent final outcome risks an adverse comment at the next CQC inspection with consequent reputational, market and registration penalties.

Medical Practitioners Assurance Framework (MPAF)

Published by the Independent Healthcare Providers Network (IHPN), the MPAF helps foster a more standardised approach to medical governance in the independent sector and ultimately drive up the quality and safety of care for patients. It states (section 4.7) that:

“Independent providers must have arrangements in place for the review of complaints that are outlined in their policies and in information available to patients. Any complaint received must be investigated and necessary and proportionate action must be taken in response to any failure identified by the complaint or investigation.”

It also explains (section 1.6) that:

“The granting of practising privileges is a widely used, well-established process within the independent sector with specific meaning within regulations, whereby a medical practitioner is granted permission to work in an independent provider. Whilst medical practitioners working with practising privileges are independent contractors, the independent provider must demonstrate that medical practitioners carrying out a Care Quality Commission regulated activity are ‘fit and proper’ for the role.”

What this means for you

If you decide to have treatment at a smaller hospital or clinic where you might not have access to an independent complaints process, then consider carefully whether the healthcare provider is also abiding by their duty of candour to you. The Government has ensured that organisations like the CQC inspect all healthcare providers and that there is an external complaint review route, that providers themselves advertise their complaints procedure, and also ensure that patients have access to it.

Sally Taber, Director of ISCAS, says: “If a hospital’s complaints process isn’t made clear from the start, patients should exercise their rights to ask to see it. They should also consider the most recent report of a CQC (or relevant national regulator) inspection to help their own evaluation of the healthcare provider.”

Unlike PHSO for the NHS, ISCAS cannot deal with complaints related to clinical negligence (e.g. injuries caused by poor hospital hygiene or failure to follow proper procedures). Clinical negligence complaints should go straight to the relevant professional regulator, or patients should seek accredited legal advice. Patients with private medical insurance can take their financial (but not clinical) complaints directly to their insurer, and escalate to the Financial Ombudsman Service.

These routes to resolution should always result in satisfying a patient’s reasonable demands without needing to resort to the civil courts.

How indemnities could affect your complaint

An issue with private healthcare is the high proportion of doctors who are self-employed and engaged through ‘practising privileges’. They are responsible for their own indemnity, and those are often discretionary and not subject to external regulation.

Where a medical professional performs a service to a patient and makes an error which causes harm, it is open to a patient to claim e.g. a financial indemnity. All medical professionals in the UK are legally required to have indemnity insurance, which gives cover to doctors in the instance that a patient makes a claim for compensation for clinical mistakes. Such claims are between the patient and the medical professional and are not a matter for the healthcare provider (although most providers will offer the patient informal help) and fall outside the scope of the ISCAS Code. There is no single organisation responsible for private healthcare indemnity claims.

One of the criteria’s outlined in the MPAF for Practising Privileges is a “Valid certificate of adequate insurance cover through an insurance company or medical indemnity cover through a Medical Defence Organisation to an appropriate level.”

What this means for you

Because consultants working privately usually do so often as a self-employed individual, the hospital isn’t necessarily liable for the consultant’s independent practice, and patients risk being caught up in a ‘liability gap’, i.e. whether what went wrong was the fault of the hospital or the consultant. It does mean that when things go wrong with patients, the very thing they rely on isn't necessarily there. Therefore, before you commit yourself to treatment by a self-employed medical professional ensure you know that they are indemnified, and by whom.

Dr Rob Hendry, Medical Director of indemnity provider Medical Protection Society says: “It is in everybody’s interest that indemnity arrangements are clear. Healthcare professionals and providers want to know they are protected from claims and patients want to know that they will be able to access compensation if it is needed.

“All doctors are required by the GMC to have adequate indemnity cover or insurance for their practice and we regularly advise individual doctors on what protection they need. We also provide protection against claims to healthcare providers.

"When considering private treatment pathways, patients might want to ensure they understand the differences between private and publicly funded pathways. Think about ‘what happens when something goes wrong?’’ and ‘how would my complaint be managed?’”.

Rob adds: “I think the message for patients is, if there’s something you don’t understand or are not happy about, you have a right to be told – and you should exercise that. Patients should have that sense of empowerment to make sure that they get the answers they need.”

Things to check when considering private healthcare

Things to check when considering private healthcare

1. Find out if the hospital subscribes to ISCAS
If they do, their website should signpost to ISCAS. You can also search the databaseon the ISCAS website.

2. Find or ask for the hospital’s complaints policy and procedure
Search for it on the hospital’s website, and request to see it if it isn’t there.

3. Check with the hospital about indemnities and insurance
Find out how the hospital and consultant are insured, and who’s responsible if something goes wrong. Make sure you have carefully read and understood the small print in the Terms and Conditions, including what is said on ‘practising privileges’, before signing them.

4. Be clear on the outcome
Make sure you and your doctor are on the same page about the outcome from your treatment or procedure. This helps to make sure you’re fully informed, and can help avoid surprises, disappointments, and possibly a complaint.

5. Know what you want to get out of your complaint
If you’re thinking about complaining, be clear on your expectations from the start. Whether it’s an apology or compensation you’re seeking, make it known from the beginning.

The World Health Organization (WHO) Patient safety rights charter

Although not all hospitals and consultants will necessarily have signed up to it, The Patient safety rights charter can provide useful support if you are making a complaint as it "aims to outline patients’ rights in the context of safety and promotes the upholding of these rights, as established by international human rights standards, for everyone, everywhere, at all times".