More than a moan? Complaints, whistleblowing, and the ongoing need for independent complaint handling in social care

As well as providing the findings of research which provides an evidence base for complaint resolution practice, this website aims to work collaboratively with practitioners, policymakers, and researchers to identify best practice. This includes inviting guest blogs so that views and opinions can be aired and shared.

We are pleased to post our first guest blog from Henry Mathias. As Head of Professional Standards and Practice at the Care Inspectorate, Henry Mathias has a lead role in complaints.  However, this guest blog has been written from a personal perspective, drawing on his extensive experience in the field of care regulation, rather than representing the views of the Care Inspectorate.

Over 20 years ago, when asking about the new Public Interest Disclosure Act 1998 (whistleblowing legislation) while out on inspection, I remember a nursery manager’s response was to reassure me that the children all knew to sit down on the gym mat whenever she blew her whistle. A lot of water has passed under the bridge since then and awareness of whistleblowing has increased significantly, but are whistleblowers any better supported and protected? And with the care system in Scotland currently being redesigned, what changes to complaint handling are needed in order to improve people’s experiences of care?

The value of independent complaint handling

I’ve been inspecting social care long enough now to have witnessed several swings of the regulatory pendulum, with major structural reform taking place approximately every 10 years. Pulling the levers to hand is a lot more achievable for any government compared to the long-term investment needed to improve the quality of care from the bottom up. When the regulation of care was last restructured in 2010, the Scottish Parliament resisted calls for the new Care Inspectorate (Scotland’s social care regulator) to be divested of its predecessor’s power to directly investigate without complainants first having to go through the care service provider’s procedure. This decision recognised the particular vulnerability of people experiencing services and the findings from the succession of inquiries into chronic failures across social care.

More than a decade later, the Care Inspectorate continues to value and in many ways rely on complaints in order to protect people experiencing services, with specialist complaints teams separate from inspection. A complaint allows a deep dive into an individual’s actual lived experience as opposed to the planned inspection of a whole service. Complaints are an effective safeguarding tool, with a significant proportion of enforcement resulting from complaints rather than routine inspections. And the number of complaints rises year on year, with over 5000 complaints now being made annually, with complaints from families regarding the private care of their elderly relative being the most common. This has built over time and in my view reflects the accessibility and continuity of the regulator’s complaint function. In Scotland, families and staff know that they can complain to the Care Inspectorate about their local social care service and that improvements are likely to result.

Gaps and messy joins in oversight of the care system

However, the public assurance afforded by an independent regulator directly handling and investigating complaints like this only applies to a small part of the overall health and social care system. Arrangements for responding to complaints about the NHS or social work look very different. Even for regulated social care, while the path for people complaining about an individual service is clear and well-trodden, it’s not the same for people unhappy about how an individual’s needs have been assessed or the choice of services available to meet these needs within budget. Currently there is direct recourse to a statutory complaints body for the quality of a registered service, but not for how that service has been planned or commissioned. For example, take care at home as the most common service type experienced by older people. You can complain about the quality of care provided by your registered service, but not that only private providers are available, that they have been commissioned to carry out 15-minute tasks, or that staff providing your care earn less than the minimum wage because their travel between visits is unpaid.

Bringing together colleagues from Healthcare Improvement Scotland, the Care Inspectorate and the Scottish Public Services Ombudsman, we’ve recently been mapping the patchwork of different arrangements for complaints across the care system in Scotland, covering health, social work, and social care. That this was not a straightforward exercise for us professionals brought it home just how confusing our current system must be for complainants. And then we started looking at the messy joins between our professional domains and the complexity of commissioning within an increasingly integrated and multidisciplinary health and social care landscape…

The case for change

Responses to the Scottish Government’s consultation on a new National Care Service indicate widespread support for a new system for adult social care complaints, possibly underpinned by a Commissioner for community health and care. Calls for at least a more accessible publicly facing portal to help people navigate the care maze now seem overwhelming. Reform of the Public Interest Disclosure Act was already on the cards in relation to whistleblowing, but Covid has given the case for more consistent and integrated complaint handling across the care system considerable momentum.

The case for extending some form of independent statutory oversight of complaints across the whole care system, including powers of direct investigation, seems strong. The historical litany of catastrophic failures demonstrates that sufficient change is unlikely to emerge from within the different sectors and structures. Whether from health, social care or social work, we all have our own landmark cases like Mid Staffs, Winterbourne View and Miss X that haunt us, with each national inquiry usually matched by less prominent scandals on our local patch. While the circumstances vary, the lessons are remarkably consistent: understand how power operates and can be effectively challenged within each workplace culture and engage outwith your professional silo. And above all, take heed of families, anonymous complaints, and whistleblowers.

A quick scan of recent media coverage indicates that these systemic problems are far from historical. The trauma of families with elderly relatives experiencing social care has been exacerbated during the pandemic and they were forced to set up their own group and stand outside Parliament to get their voices heard. At the same time, whistleblowers continue to lack sufficient protection, as illustrated by the treatment of staff blowing the whistle on failures to address allegations of serial abuse by a manager at the City of Edinburgh Council Social Work Department and a culture of bullying at NHS Highland. 

Mapping a way forward

But what opportunities and threats are presented by establishing a truly integrated level playing field, with the response to complaints reflecting risk to individual health and wellbeing rather than professional structures and the service setting? How could a National Care Service help simplify the current arrangements rather than adding a further layer of complexity? Should there be an Independent National Whistleblowing Officer for social work as well as health?  

My view is that the evidence seems to point to the need for an external watchdog, with teeth. Being a dyed in the wool regulator, I guess I would say that. Ultimately investigation by an external regulator should be a tool of last resort, an expensive and crude instrument of change. Indeed, most complaints are dealt with effectively via front line resolution as close to the ground as possible. The arrival of inspectors can also be threatening to professionals providing care and fail to bring out the best in people.

If current standards being experienced were nearer to those set out in the Health and Social Care Standards (which state what people should expect when using health, social care or social work services in Scotland), then I could see merit in the new structure prioritising working alongside providers to support internal assurance and the application of improvement methodology over old-school regulation. Or a watchdog only looking at the most serious complaints after exhausting the provider’s own complaints procedure. Given what we know about current standards, however, with secret smart phone recording providing a constant reality check, we might regret dropping the big stick. When things go badly wrong in care, and there’s no evidence to indicate that this will be stopping any time soon, then the public, politicians and the media demand a credible, independent scrutiny body to hold professionals to account and provide public assurance.

Henry Mathias, 9 February 2022.

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