Who can make an NHS complaint

Section 5 of the Local Authority Social Service and National Health Service (England) Complaint Regulations 2009 sets out who can make a complaint.

Whilst you will find the relevant section below in laymans terms you can make a complaint if you are any of the following;-

a) a person who received the poor treatment

b) a person who might be affected by the poor treatment (for example if you have your partner was the bread winner and they can no longer work as a result of the poor treatment then you can make a complaint)

c) a person who is acting on behalf on someone who has died

d) a person acting on behalf of a child, although in this case the NHS will have to decide if the child should have made the complaint instead.

e) a person who is acting on behalf of someone who cannot make a complaint because they are physically unable to or because they lack the mental capacity to do so (in regards to mental capacity this is quite specific in that it is someone who lacks mental capacity as per the Mental Capacity Act 2005)

f) a person who has been asked to make a complaint by the person affected.

If you are representing someone and the complaints department don't think you are acting in their best interests then they do not have to investigate the complaint and should write to tell you why they think this way.

If you've been told that you can't make a complaint and fit into one of the categories above then you might try the complaints department again. If that doesn't work you can complain to the Health Service Ombudsman about the fact your complaint isn't going to be investigated.


Persons who may make complaints
5.—(1) A complaint may be made by—
(a) a person who receives or has received services from a responsible body; or
(b) a person who is affected, or likely to be affected, by the action, omission or decision of
the responsible body which is the subject of the complaint.
(2) A complaint may be made by a person (in this regulation referred to as a representative)
acting on behalf of a person mentioned in paragraph (1) who—
(a) has died;
(b) is a child;
(c) is unable to make the complaint themselves because of—
(i) physical incapacity; or
(ii) lack of capacity within the meaning of the Mental Capacity Act 2005(a); or
(d) has requested the representative to act on their behalf.
(3) Where a representative makes a complaint on behalf of a child, the responsible body to
which the complaint is made—
(a) must not consider the complaint unless it is satisfied that there are reasonable grounds for
the complaint being made by a representative instead of the child; and
(b) if it is not so satisfied, must notify the representative in writing, and state the reason for
its decision.
(4) This paragraph applies where—
(a) a representative makes a complaint on behalf of—
(i) a child; or
(ii) a person who lacks capacity within the meaning of the Mental Capacity Act 2005;
and
(b) the responsible body to which the complaint is made is satisfied that the representative is
not conducting the complaint in the best interests of the person on whose behalf the
complaint is made.
(5) Where paragraph (4) applies—
(a) the complaint must not be considered or further considered under these Regulations; and

(b) the responsible body must notify the representative in writing, and state the reason for its
decision.
(6) In these Regulations any reference to a complainant includes a reference to a representative.