Assessment Phase
Before a Complaints Officer deems the complaint suitable for Stage 2 investigation, a number of checks must be made.
The Complaints Officer will carry out an assessment of the complaint where he/she will firstly determine if the complaint is included or excluded under Part 9, Section 48 of the Health Act 2004, see Table 3 Complaints that cannot be managed using Part 9 of the Health Act 2004.docx (size 27.8 KB)
If the Complaints Officer is satisfied that the complaint subject matter falls within the provision of Part 9 of the Health Act, the complaint will be managed in accordance with the section….. link to Commencement of Investigation at Stage 2.
(i) Requesting Information from the Complainant
Where required, the Complaints Officer may request further information from the Complainant to:
- satisfy himself or herself of the identity of the person concerned and where the person making the complaint is not the Complainant, satisfy himself or herself that that person is entitled to do so (link to section)
- determine if an investigation is required under Stage 2, or more information to enable a Complaint Officer to carry out an investigation of the complaint.
- determine if another pathway is more appropriate (e.g. Trust in Care, Safety Incident Management, etc.)
(ii) Additional Assessment Criteria
As part of the assessment phase, the Complaints Officer must determine that:
- the subject matter of the complaint is not trivial,
- the complaint is not vexatious,
- the complaint is made in good faith, and
- the complaint has not already been resolved.
Where the above criteria is not met, either during the assessment or the investigation, the Complaints Officer may decide not to investigate or further investigate the complaint. If this is the case the Complaints Officer must update the Complaints Management System.
(iii) Transfer of a Complaint to an Alternative Complaints Officer
When a complaint is received by a Complaints Officer, it is their duty to carry out an investigation where appropriate. In exceptional circumstances, a Complaints Officer may feel that he/she is not in a position to investigate the complaint:
- They may have difficulty in remaining impartial and non-biased in the investigation of the complaint
- Have previous poor interpersonal or working relationships with the parties involved
- The complaint is one of particular national significance for the organization; involves a large number of HSE locations and services, and/or that may attract considerable media attention
For further information contact your local Consumer Affairs Office
The Complainant must be informed immediately upon the new assignment of a Complaints Officer to investigate the complaint, as the investigative timeframe (30 workings days) continues to apply.
(iv) Withdrawal of Complaints
A Complainant may, at any time, withdraw their complaint. The Complaints Officer must update the Complaints Management System to reflect this status.
However, where the Complaints Officer has reasonable grounds for believing that public interest would best be served by the continuation of the investigation or review, he or she must refer the matter to their relevant Head of Service (Accountable Officer) as outlined in the Policy.
(v) Review of the Outcome of the Assessment
The Complainant may appeal the decision of the Complaints Officer not to proceed with a Stage 2 investigation of their complaint. The Complainant has the right to request either a HSE Internal Complaint Review and/or an external review (e.g. Ombudsman/OCO).
(vi) Process upon Completion of the Assessment
Where the Complaints Officer determines that the complaint does not meet the criteria detailed (Table 3 ), the Complaint Officer will inform the Complainant in writing, within 5 working days of making the decision/determination, that the complaint will not be investigated and the reasons for it.
Where alternative complaint processes are appropriate for the management of such complaints, the Complaints Officer will refer the complaint directly to the appropriate health service personnel for management under the relevant policy, procedure, protocol or guideline.
The Complainant is to be informed (within 5 working days) of where the complaint is being referred to and why.
Remember: Update the Complaints Management System!
(vii) Complaints that may be managed using the processes outlined in this Guidance Manual.
Table 2: Complaints that can be managed using Part 9 of the Health Act 2004
| Details of Complaint/Allegation |
Policy, Procedure, Guideline orlegislation to be followed |
| Complaints about an action of the HSE or Service Provider that fall within the provisions of Part 9 of the Health Act 2004 |
Your Service Your Say, The Management of Service User Feedback Policy for Comments, Compliments and Complaints, 2017 and associated Guidance Manual |
| Complaints in relation to access to services under Part 3 of the Disability Act 2005 (Access) |
Your Service Your Say, The Management of Service User Feedback Policy for Comments, Compliments and Complaints, 2017 and associated Guidance Manual.
Service users can make their complaint to any member of staff in the organisation and this complaint will be forwarded to a National Disabilities Complaints Officer.
These complaints must be in writing and sent to:
Email: yoursay@hse.ie
Address: HSE Oak House, Millennium Park, Naas, Co. Kildare.
|
| Complaints in relation to Clinical Judgment |
Complaints in relation to Clinical Judgement |
| Anonymous Complaints |
Anonymous Complaints |
| Vexatious or Malicious Complaints |
Vexatious and Malicious Complaints |
(viii) Complaints that do not fall within the remit of this Guidance Manual
(must be referred to the appropriate personnel to be addressed using the appropriate Policy, Procedure, Guidelines or Legislation as detailed in this table)
Table 3: Complaints that cannot be managed using Part 9 of the Health Act 2004
(ix) Matters excluded from right to complain under Part 9 of the Health Act 2004.
A complaint is excluded under Part 9 of the Health Act 2004 if it is in relation to any of the following matters:
- a matter that is or has been the subject of legal proceedings before a court or tribunal;
- a matter relating solely to the exercise of clinical judgment by a person acting on behalf of either the Executive or a Service Provider;
- an action taken by the Executive or a service provider solely on the advice of a person exercising clinical judgment;
- a matter relating to the recruitment or appointment of an employee by the Executive or a service provider;
- a matter relating to or affecting the terms or conditions of a contract of employment that the Executive or a service provider proposes to enter into (includes terms or conditions relating to superannuation benefits, disciplinary procedures or grievance procedures);
- a matter relating to the Social Welfare Act;
- a matter that could be the subject of an appeal under section 60 of the Civil Registration Act 2004;
- a matter that could prejudice an investigation being undertaken by An Garda Sıochana;
- a matter that has been brought before any other complaints procedure established under an enactment (e.g. complaints made under Part 2 of Disability Act, 2005 or the Mental Health Act 2001).
There may be times where a complaint contains both matters that can be investigated under Your Service Your Say and ‘non-Part 9’ matters. The issues that fall under Your Service Your Say can be investigated accordingly and the ‘non-Part 9’ matters are referred to the appropriate personnel to be addressed using the appropriate Policy, Procedure, Protocol, Guideline or Legislation.
Who can make a complaint?
In accordance with Section 46, Part 9 of the Health Act 2004 the following may make a complaint:
- Any person who is being or was provided with a health or personal social service by the HSE or service provider,
- Any person who is seeking or has sought provision of such service.
If a person is entitled to make a complaint but is unable to do so because of age, illness or disability, the complaint may be made on that person’s behalf by:
- a close relative or carer of the person,
- any person who, by law or by appointment of a court, has the care of the affairs of that person,
- any legal representative of the person,
- any other person with the consent of the person, or
- any other person who is appointed as prescribed in the regulations.
If a person who would otherwise have been entitled to make a complaint is deceased, a complaint may be made by a person who, at the time of the action in relation to which the complaint is made, was a close relative, or carer of that person. A close relative is defined in Section 45 of the Health Act, 2004 as being a parent, guardian, son, daughter, spouse or someone who is cohabiting with the person on whose behalf the complaint is being made.
(x) Types of complaints
A complaint can be made about any action of the HSE or relevant Service Provider that:
- it is claimed, does not accord with fair and sound administrative practice, and
- adversely affects or affected that person
As defined in the Health Act 2004, an action does not accord with fair and sound administrative practice if it is:
- taken without proper authority,
- taken on irrelevant grounds,
- the result of negligence or carelessness,
- based on erroneous or incomplete information,
- improperly discriminatory,
- based on undesirable administrative practice, or
- in any other respect contrary to fair or sound administration
A Stage 2 (verbal or written) Formal Complaint can be:
- A complaint that falls within the remit of Part 9, Health Act 2004, which may include multi-site issues.
- A complaint that partially falls within the remit of Part 9, Health Act 2004, e.g. including clinical judgment aspects. A Complaints Officer must discuss this type of complaint with the relevant parties involved, e.g. QPS, Clinical Director, etc. The Complaints Officer must request their input in relation to the clinical judgment matters.
