Eastern HSS Council Website - CXhildren as Complainants 2

CHILDREN AS COMPLAINANTS IN THE HEALTH AND PERSONAL SOCIAL SERVICES IN NORTHERN IRELAND

Repeated inquiries into the care of children in residential and foster care settings have been necessary in recent years. Children and young people themselves are now recognised in both human rights law and domestic law on consent to medical treatment to have the right to participate in decisions about their social care and treatment once they have developed an appropriate level of understanding. Finally, complaints by or about the care and treatment of children and young people are estimated to be almost 12% of all HPSS complaints each year in Northern Ireland. (See table 4.1) How people are treated by the public services when they make a complaint may be regarded as a barometer of how they are treated by those same services in more routine circumstances.

These various factors and developments indicated it was timely to investigate how well the Health, Social Services and Public Safety systems responds to 'expressions of dissatisfaction' (that is, complaints) made by or about children and young people in Northern Ireland. The four Health and Social Service Councils funded the six month study reported here to investigate these issues in 2001. The research was undertaken by a small team from Queen's University, Belfast led by E. McLaughlin, Chair of Social Policy at Queens.

Both the personal social and health services (hereafter HPSS) are required to respond positively and effectively to complaints from service users. In the case of children and young people, complaints about their treatment in either part of the HPSS may arise within the post 1996 'Wilson Complaints procedures' or within the post 1995 Children Order (see Part IV) procedure. This section outlines the nature and development of these two systems and discusses the importance of such systems in upholding children's rights.

Complaints systems have two main functions (Wallace and Mulcahy 1999). The first function is to provide a way for people who are dissatisfied with the service they have received to air their grievance and to receive a response. In this way, those who provide a service are made accountable to individual users who may receive some form of redress if their complaint is substantiated. The second function is to reflect a general societal interest in the efficient and effective resolution of grievances arising from public services. Complaints have enormous potential to shed light on the problems faced by ordinary people in their dealings with the Health and Personal Social Services and can serve as 'red flags' when service provision fails. They can provide a way of finding out the views of service users and may lead to improvements which benefit the whole patient and client population. The investigation and adjudication of complaints also sends out wider signals to HPSS employees about what is, and is not, acceptable behaviour within the organisation. In the case of children and young people specifically complaints systems must also be seen as an integral part of child protection structures and practices.

The current HPSS complaints systems procedures were introduced in the wake of a series of initiatives aimed at improving the management of complaints in the NHS.

The launch of the Citizen's Charter initiative in 1991 directed specific attention towards the handling of complaints within the public sector. The Charter Initiative characterised complainants as 'customers' in a quasi-contractual relationship with providers and viewed effective complaints handling as a key component of a responsive organisation. The Citizen's Charter Complaints Task Force (1993) also published a series of discussion papers around the seven core principles of 'accessibility, simplicity, speed, fairness, confidentiality, effectiveness and quality enhancement' which it believed should govern the management of complaints.

In the mid 1990's the Wilson Committee was established to rethink complaints handling in the health service. The Wilson Committee's report Being Heard was published in May 1994. The Committee's recommendations were accepted by the Department of Health and formed the basis of new regulations which came into effect in April 1996 and which remain in force. In response to these UK developments, the Northern Ireland HPSS Executive published Acting on Complaints; its revised policy and proposals for a new unified HPSS complaints procedure, in March 1995. These applied to services provided by health and personal social services in Northern Ireland, including hospitals, social services or family practitioners such as GPs, dentists, pharmacists and opticians. Complaints about the purchasing of health and social care which are the responsibility of HSS Boards and GP Fundholders are also covered as are services provided to HPSS patients or clients by the independent sector. The Wilson report and recommendations made no special mention of or provision for children and neither did Acting on Complaints and its associated procedures. Rather personal social services complaints about the care, upbringing and protection of children are handled separately under the Children (NI) Order as described later in the report.

Local Resolution

The Wilson complaints system, introduced in 1996, places great emphasis on staff or practitioners dealing with complaints on the spot in a process known as Local Resolution. This was seen as the key to the new procedure being successful. The aim was that complaints should, in the first instance, be dealt with "quickly and where possible, by those on the spot" but at the same time "provide a comprehensive response that satisfied the complainant". For Local Resolution to work effectively front-line staff need to listen to complaints, act to resolve complaints and subsequently to improve services as a result of complaints. Trusts and HSS Boards must have in place a process that aims to resolve most complaints on the spot or within a few days. If this is not possible a full investigation must be made and a response sent to the complainant within twenty working days.

Family Practitioners (GPs, dentists, pharmacists, opticians) must have practice-based complaints procedures in place which are managed entirely by the practice, with one person responsible for their administration. These procedures should be clearly publicised and an acknowledgement or initial response to a complaint should normally be made within two working days with an explanation normally being provided within ten working days. Where a complainant does not wish to have a complaint dealt with by the practitioner, or is having difficulty in getting the complaint dealt with, a designated officer from the Health and Social Services Board will, if both parties agree, act as 'honest broker' between the complainant and the practitioner. The aim of this is to facilitate dialogue between them so that local resolution can take place.

Independent Review

When Local Resolution fails to satisfy a complainant they can ask for an Independent Panel of persons to be set up to investigate the facts of the case in an Independent Review and to issue a report. A complainant should request such a Review within twenty-eight days of the Local Resolution process concluding. In Northern Ireland Health and Social Services Boards are responsible for organising such Panels and the Panel Convenor is normally a Non-Executive (that is lay) Director of the Board who has been given a specific function in relation to complaints. A national evaluation of the NHS complaints procedure (York Health Economics Consortium 2001) found that, on average, more than 90% of complaints do not proceed beyond the local stage.

The Independent Review Panel

The panel has three members, the Convenor, an independent lay chairman and another independent lay person. The Convenor, in consultation with the independent lay Chairman decides whether or not to set up a Panel. The Convenor's job is to ensure the complaint is dealt with impartially and thoroughly. The Convenor can request background papers, written statements and if necessary, seek independent clinical advice. If a request for a panel is refused the reason must be clearly explained to the complainant.

The Panel's investigations should be informal, flexible, non-adversarial and ensure that both sides have a chance to express their views (usually at separate meetings).

For complaints relating to clinical or other professional judgement, Panels must be advised by at least two independent clinical assessors drawn from the speciality or professions concerned. The report(s) from the assessors are attached to each Panel's final report which has a restricted circulation.

The Panel report may make no reference to disciplinary matters. The relevant Health and Social Services Trust or Board must consider the report's content and inform the complainant of any actions taken as a result.

The Role of the Health and Social Services Councils

The staff of the Health and Social Services Councils can play an important role in assisting complainants at each stage of the above process. In circumstances where patients or clients request support or assistance in making a complaint they should be recommended by HPSS staff to contact their local Health and Social Services Council.

Time Limits for Making a Complaint

Normally a complaint must be made within six months of the incident (or within six months of the date of discovering the problem, provided that this is within twelve months of the incident) HSS Executive guidance states that discretion to vary this time limit should be used "flexibly and with sensitivity".

Disciplinary Matters

As noted above disciplinary matters are considered separately from the complaints procedure so although disciplinary action may be taken following a complaint that is pursued under different procedures. Where a convenor considering a request for independent review believes the behaviour of the staff involved is so seriously deficient as to merit immediate (that is prior to full complaints investigation) disciplinary investigation he or she should refer the case to the relevant Board's reference committee.

The Northern Ireland Commissioner for Complaints

The Northern Ireland Commissioner for Complaints (also known as the Ombudsman) is also able to consider complaints about family health services and also issues of clinical judgement. However complaints may be passed to the Ombudsman's office only when all other avenues of complaint have been exhausted.

The Children Order Complaints System: characteristics and purpose

Despite their important role in child protection especially in the residential and foster care sectors, complaints procedures within Social Services are a relatively new phenomenon, (Aiers and Kettle 1998). They note that the development of such procedures followed on the string of revelations throughout the 1980's and 1990's about the abuse of children and young people in residential care institutions, such as Kincora in Northern Ireland (1980), Leeways in Lewisham (1985), Pindown in Staffordshire (1990), Ty Mawr in Wales (1991), children's homes in Leicestershire (1992), Castle Hall in Shropshire (1992) and in Islington, Clywd and Cheshire children's homes (1995, 1996).

As a result of the scandals revealed by these inquiries during the 1980's, children's advocacy organisations such as The National Children's Bureau, A Voice for the Child in Care and the National Association for Young People in Care were active in promoting awareness within professional circles of the need for young people 'in care' to be listened to. In the professional and political debate during the passage of The Children Act (1989) there was strong pressure on government to incorporate a statutory complaints procedure. The government however was indifferent to the idea of incorporating complaints in The Children Act although in the end it included a one-word referral to complaints within the representations section thus:

In Northern Ireland, the Children Order (1995) similarly requires Trusts, voluntary organisations and privately run children's homes to establish procedures for considering representations and complaints about children's services. The Children Order Guidance and Regulations note that the procedure should cover all representations or complaints about a Trust's actions in exercising its functions under Part IV of The Order concerning 'Support for Children and their Families'. Voluntary organisations and privately run children's homes are also required to set up representation procedures to consider representations or complaints made by or on behalf of children accommodated by them but not looked after by a Trust.

The Problem Solving Stage

As in the Wilson Procedure, complaints made under the Children Order are preferably resolved locally. This is referred to as the "Problem Solving Stage".

Investigation Stage

Unresolved complaints may proceed to a formal investigation. The complaint should be registered with the designated complaints officer in the relevant Trust and an investigation should take place. A person who is not a member or an officer of the trust must take part in the discussion and consideration of such representations or complaints and in determining what action should be taken. If the complainant is not satisfied with the outcome of this investigation then they can request that the complaint be referred to a Panel. This Panel is made up of one independent member and two officers or Directors of the Trust. Complaints which are unresolved at this stage may be referred on to the NI Commissioner for Complaints.

The principal difference between the Children Order and the Wilson systems is that in the Children Order, the panel/review stage is the responsibility of the Trust where the complaint arose rather than the local HPSS Board as in the Wilson system. The Children Order system may thus be characterised as less independent than the Wilson system which itself has been heavily criticised for lacking independence.

The Participation of Children and Parents in Social Care Practice

The Children Order Guidance and Regulations calls for the informed participation of the child and parents in decision-making about services for the child although it recognises that sometimes this will not be achieved. It emphasises that the complaints procedure should involve independent persons and should ensure that the child, their parents and others significantly involved with the child have confidence in their ability to make their views known and to influence decisions made about the child's welfare. The Guidance and Regulations go on to state that this independent person is not an advocate for the child nor an investigator, but rather his or her role is to provide an objective element in the Trust's considerations.

Who May Take a Complaint?

Trusts are required to check with the child (subject to his or her understanding) that a complaint submitted on their behalf by an adult or other person reflects their views and that they wish the person submitting the complaint to act on their behalf. Yet even where it is decided that the person submitting the complaint is not acting on the child's behalf, that person may still be eligible to have the complaint considered under the procedure. The Trust has discretion to decide in cases where eligibility is not automatic whether or not an individual has sufficient interest in the child's welfare to justify his own representation being considered by it (Article 45 (3)(e)). Trusts are exhorted to have a clear policy on this matter which "takes account of the Children Order's emphasis on participation in decision-making of all those persons who are significant to the child or can make a positive contribution to planning for the child's future". Taking this into account it appears there may be potential for conflict with the Children Order's other assertions that the views of the child themselves be considered.

Complaints Publicity

In addition to advertising complaints procedures at HPSS venues and other public community venues, it is described as "good practice," although not mandatory for Trusts to ensure that information on the representations and complaints procedure forms part of an information pack made available prior to a first review of a child's case or at the time a decision is issued in respect of approval of a foster parent.

Monteith and Cousins (2001) examined the case files of 399 Children under 5 in State Care in Northern Ireland and found that the social workers had sought the child's opinions about their case review's considerations in only 7.5% of cases. This may be a function of the young age of the children involved in this particular study. However relevant adults were not always provided with the chance to make their voice heard either. Parents and carers were provided with information leaflets on the complaints and representation procedure in only 19.3% of the 399 cases. This being the case it would seem likely that many children in state care and their families are unaware of the Children Order representations and complaints procedure.

Advocacy and Support

The Guidance and Regulations state that all the publicity material regarding complaints should present a positive view of the use of the procedure and should seek to counter fears that invoking the procedure will cause problems for a complainant in on going day to day contact with Trust staff. It is also recognised that some parents and most children will need advice and confidential support to make their representation or complaint, to pursue it, to understand the administrative process and to cope with the outcome. Trusts are required to offer such assistance and support or alternatively to give advice on where this may be obtained.

In the case of Children accommodated in residential care settings, if such children are to be confident enough to invoke the procedure they need to be sure that making a complaint will not rebound adversely upon them. The Guidance states that this may mean a person who has no line management or service delivery responsibility or involvement in the child's case should be available to work with the child in the matter of representation or complaint. However, it is left to individual Trusts to decide how this could best be arranged.

The Guidance and Regulations expect Trusts to give "due consideration" to the findings of complaints and representation procedures but they are not bound to implement the findings or conclusions of such proceedings. They are however required to notify in writing to the person who made the complaint, the child (if he or she is of sufficient understanding) and anyone else likely to be affected by the Trust's decision. However since the Trust is not obliged to carry out the recommendations of the panel for many children and their families taking a complaint under the Children (NI) Order procedures may ultimately feel like a fruitless exercise.

The Importance of Complaints Procedures for Children and Young People

Despite the limitations of the HPSS complaints procedures outlined above Aiers and Kettle (1998) remind us that there are four issues which demonstrate the importance of an effective complaints procedure. These are: protection, the right to be consulted, participation and improved service provision.

Establishing a channel for children and young people to express complaints about mistreatment in residential care may provide a safeguard against abuse, but complaints procedures alone can never constitute adequate protection. In an abusive setting it is likely that vulnerable and powerless residents will not be in a position to make use of such procedures although ex-residents may be better able to do so.

The formality of HPSS complaints systems means as Utting stated in his review of safeguards for children living away from home:

Nevertheless, having a complaints procedure is better than not having one and the importance of establishing a climate and ethos of care in which a complaints system can operate effectively must be recognised. In addition, such systems are fundamental to implementation of the UN Convention on the Right to be consulted.

The UN Convention on the Rights of The Child

Article 12 of the UN Convention of the Rights of the Child establishes the centrality of the principle that children have a right to express their views on all matters of concern to them and that their views must be given due consideration appropriate to their age and understanding. Historically this right has been ignored in both the private and public sphere in most societies Aiers and Kettle (1998). However, the existence of a child friendly representations and complaints procedure would at least be an acknowledgement of these rights.

Encouraging the participation of children and young people in their decisions about their care and treatment increases their self-esteem, autonomy, personal and social development and social integration (Aiers and Kettle 1998, Lansdown 1995). A complaints procedure alone cannot deliver all this, but in the appropriate care climate it can positively contribute to these goals for young people. Major barriers to children's meaningful participation in decisions about their own medical and mental health and social care remain however. Lewis and Lewis (1990) for example found that physicians' resistance together with parent's fears of losing control were significant obstacles to the participation of children and young people in their care and treatment.

The Northern Ireland Children's Commissioner

In Northern Ireland the representation of children should improve in the near future. In January 2001 the Office of the First Minister and Deputy First Minister announced that a Commissioner for Children for Northern Ireland would be appointed early in 2002. The intention is that the Commissioner will act as a voice for children and young people up to the age of 18, or up to the age of 21 in the case of looked after children or those cared for in the juvenile justice system. Consultation is underway at the time of writing on the precise nature and powers of the Commissioner. However it is proposed that the commissioner will have an important role in monitoring and reviewing organisations and ensuring that those with a statutory duty towards children discharge that duty properly. This includes ensuring that information relating to all aspects of service provision is accessible to children and young people. It is also foreseen that the Commissioner will be tasked with ensuring such organisations are accessible to children and can be understood by them. This has important implications for Health and Social Services organisations especially in relation to their complaints handling and procedures.

It is proposed that the Commissioner for Children will work in partnership with other organisations wherever possible, through bridge-building, disseminating good practice, and promoting and encouraging dialogue. However, it is also proposed that this will be backed up with well-defined powers to ensure that the Commissioner can do his or her job effectively. The model which is under active consideration involves the Commissioner having the specific powers outlined in Annex 5.

It is difficult to precisely predict how the proposals for the Children's Commissioner will impact on HPSS complaints systems, however in the future when complaints concerning children are raised, it is clear that there is the possibility of the Children's Commissioner becoming involved.