Welcome to Did You Know? — Hempsons’ publication designed to keep you up to date with the changing legal landscape affecting health and social care providers, commissioners and professionals.

In this edition, we focus on responding to patient complaints and the evolving challenges facing NHS bodies and providers. With increasing complexity driven by regulatory expectations, changes to commissioning responsibilities, and the growing use of AI by patients, complaints handling is becoming more demanding.

We hope you find this edition helpful. If you would like advice, training or support with complaints handling, we would be delighted to assist.

The NHS Constitution gives patients the right to have complaints acknowledged and appropriately investigated. At the core of the constitution are principles and values including that the patient will be at the heart of services and that the NHS is accountable to the public and patients. The constitution includes a core pledge that decisions are made in a clear and transparent way so that patient and public can understand how services are planned and delivered. The constitution provides that a patient has –

‘the right to have any complaint you make about NHS services acknowledged within three working days and to have it properly investigated’.

the right to discuss the manner in which the complaint is to be handled, and to know the period within which the investigation is likely to be completed and the response sent’.

‘the right to be kept informed of progress and to know the outcome of any investigation into your complaint, including an explanation of the conclusions and confirmation that any action needed in consequence of the complaint has been taken or is proposed to be taken’.

Additional pledges provide that individuals are treated with courtesy and receive appropriate support throughout the handling of a complaint, that individuals should receive appropriate explanations and apologies, delivered with sensitivity and knowledge that lessons will be learned.

There are approximately 256,000 complaints submitted to the NHS in England every year.

The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 (SI 2009/309)  (“the Regulations”) have been in place since April 2009 and govern how complaints to the NHS are handled.

These regulations set out the complaints procedure, who may complain, how a complaint should be investigated and the time limits for making a complaint.

The Regulations require every NHS body to have a complaints process and arrangements in place for addressing complaints made by patients, service used, families and individuals or representative.

Key provisions:

• Regulation 3 – each responsible body must make arrangements for handling and consideration of complaints. Arrangements must  ensure that complaints are dealt with efficiently, properly investigate, receive a timely and appropriate response.
• Regulation 5 – a complaint may be made by a person who has or continues to receive services from a responsible body or a person who is affected or likely to be affected by the action, omission or decision of the responsible body. A complaint may be made by a person acting on behalf of another who has died, is a child or who lacks capacity in accordance with the MCA 2025.
• Regulation 6 – An NHS body / ICB has a duty to handle complaints about the exercise of its functions and, for an ICB the services commissioned
• Regulation 8 – sets out complaints that do not fall within the regulations
• Regulation 12 – A complaint must be made no later than 12 months after the date of the date on which the subject matter came to the notice of the complainant, unless there were good reasons for not making the complaint within the time limit.

There is then, a duty on NHS bodies to investigate complaints in respect of the regulated activities that they provide. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 not only set out what are considered regulated activities but provide details of providers obligations and standards.

A PHSO report in July 2020 ‘Making Complaints Count’ identified that the complaint system required strengthening. PHSO additional guidance is contained in the NHS Complaints Standards, emphasising the need to be effective, thorough and fair and that fair and accountable responses are provided. Further guidance is provided  and designed to ensure that the NHS Complaint Standards are met.

It is essential that pursuant to the NHS Constitution, regulations, and guidance, NHS organisations have clear arrangements and policies which set out complaints responsibilities, the procedure before and during investigation, the appropriate response and forms of communication and how complaints are monitored. Effective complaint handling is key to managing patient experience and can assist organisations in mitigating the risk of litigation.

Since 1 July 2023, complaints made to the commissioner of GP services may be directed to the ICB rather than NHS England.

The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 (SI 2009/309)  (“the Regulations”) provide that complaints must be handled by the relevant  ‘responsible body’ as defined by the 2009 regulation. For a GP, this may be the practice itself or the commissioner of the service.

Under Regulation 7, the person making the complaint can choose to complain either to the service provider or to the commissioner.

For complaints to commissioners, the commissioner complaints function was transferred from NHSE to local ICBs, through the delegated commissioning powers of the Health and Care Act 2022, and specifically through Regulation 4 of the 2009 Regulations. The ICB must therefore investigate if the ICB is now the body with operational responsibility for the complaints function.

Some services currently remain the responsibility of NHSE to investigate (for now). Following the abolition of NHSE,  and the transfer of commissioning and oversight duties to ICBs or the Department of Health and Social Care, responsibility for complaints will depend on the type and stage of the complaint. It will remain that unresolved or second stage complaints can continue to be referred to the Parliamentary and Health Service Ombudsman (PHSO).

There is a rise in the number of AI generated or assisted complaints being reported across the NHS.  Reports from the HSJ, echoed by our clients, suggest that individuals are using AI to provide longer, more detailed and complex letters to raise issues and concerns with NHS bodies.

What effect is this having

Complaints made with the assistance of AI can often be identified quickly. They are typically more detailed, using complex often repetitive language, in paragraphs that repeat the issues and which don’t always make sense or move the complaint forward. There is an risk of hallucinated legal argument (either factually incurred or based on foreign jurisdictions),  and/or suggested technical or non-existent treatment options.

The effect of the increase of AI generated complaints potentially presents a greater burden on investigations due to difficulties in identifying the complaints at the centre of any correspondence and the inclusion of the threat of legal action based on hallucinated legal duties, resulting in confusion and the increased need for legal oversight.

Does the use of AI in patient complaints affect the NHS response?

An AI generated or assisted complaint should, essentially be approached in line with existing complaints policy and regulation.  Identification of key issues, thorough investigation within appropriate timescales and a clear response to the complainant.

It is the identification of the complaints and increased complex wording and references which may require additional time to clarify.

AI can, of course, also be used to address patient complaints and assist in drafting responses with clear time benefits to complaints teams, there have been recent reports of Trusts highlighting efficiencies in the use of AI in handling patient complaints), and this can and should be explored further.

However extreme caution must be taken to ensure any response is entirely legally and factually accurate. In reality, the use of AI and the associated need to double check any drafting and ensure fake references or information is not inserted, may not assist significantly or reduce the time burden in circumstances where clinicians and/or experienced investigators are better able to clearly and accurately address concerns.

And…Did you know that the ICO has published guidance to assist with AI generated FOI requests?

Guidance has been published on 6 May 2026 by the ICO to support public authorities in dealing with AI generated FOI requests. The guidance recognises the increase in use of AI in generating requests. The guidance recognises effects on the length of requests, potentially resulting in an increased amount of information requested, and the need to clarify with the requester if it is unclear or containing incorrect or complicated information. However, guidance confirms that the use of AI does not make a request invalid.  Guidance provides that public authorities should make sure  information access staff are trained appropriately and providers suggested text to advise individuals to ensure that the request is clear and directed.

On receipt of a complaint and before an investigation can be undertaken, the NHS body must ensure that appropriate consent has been obtained and provided to enable a full investigation to be undertaken. Where this requires access to patient records, this is particularly relevant.

An NHS complaint investigation requires the consent of a patient to access their personal and medical records as the NHS has a statutory duty to protect patient information. This of course, remains the case where an individual is making a complaint in respect of their own care and treatment, (requiring access to their own records) or another person (which requires confirmation of authority to access records).

A straightforward process must be followed to ensure a full and thorough investigation can be carried out with the appropriate permission and authority to access records. The process is as follows:

• Check who is complaining, and if they are complaining on behalf of another individual – has that individual provided consent to access their records?
• If a complaint is made by a patient or individual over 16 with mental capacity, they can consent to access to their own records. Explicit consent is required.
• Obtain a completed consent form from the complainant and/or any person directly affected

If a complaint is made on behalf of another:

• By a representative of another capacitous adult, then that adult must provide written or verbal authorisation.
• By a representative on behalf of a child – the child’s consent may be required depending on their age and understanding.
• On behalf of a person who cannot give consent due to lack of capacity – does that person have a legitimate interest in the persons welfare, does the person have access to the personal information of the individual – Is there an LPA?
• On behalf of a deceased person – is the complainant the PR or the legal executor and has control to any personal information?
• The duty of confidentiality to patient remains after death. If the complainant is not entitled to access under the Access to Health Records Act 1990, it can still be investigated and responded to however care should be taken that confidential personal information is not released.

A failure to establish and obtain appropriate consent can result in further concerns being raised and delay in the investigation and response provided.

There are circumstances in which correspondence received by an NHS organisation does not need to be addressed in accordance with the NHS complaints procedure. These include:

• When it is a complaint about non NHS funded care provided by an independent provider
• When a complaint is made by one NHS body against another
• Complaints made by employees relating to their work
• Complaints alleging that a public body failed to comply with a request under the Freedom of Information Act 2000

A ‘complaint’ may also fall outside of the formal complaints process if:

• Duty of candour has been formally engaged – If the Duty of Candour is engaged, it is a legal requirement for a proactive organisation driven be open and honest, full account of any incident to be provided, even if the patient is not previously aware and there has been no contact/ complaint raised by the patient.
• There is a statutory right of appeal and/or
• Legal action is already underway.

Most importantly, not all contact with patients or correspondence may be a complaint.

Where it is a question

Circumstances in which there is an informal expression of a worry or doubt, when it is a concern, a request for information or general feedback or where it is a routine service request are not necessarily formal complaints requiring the full complaints investigation to be undertaken.

A question is not necessarily a complaint. There is no need to engage the complaints process prematurely. On receipt of contact or correspondence, there must be consideration given as to whether this is a query, a question or an opportunity to engage in conversation / dialogue and maintain patient relationships.

Continuing to ensure that the patient is at the centre of care may mean a reengagement, taking time to focus on patient needs and how these can be best met. Ensuring a patient and their family is listened to, without preconceived views, whilst possibly time consuming, in the long run may avoid escalation to a lengthy and costly complaint investigation and improve the relationship with patients.

NHS bodies will be familiar with individuals who make repeated written complaints, perhaps alongside numerous telephone calls and use of social media. There is a clear need to balance the duty to investigate (as set out in the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009) with the need to ensure investigations are proportionate and protect and minimise the impact on staff and resources.

When in receipt of multiple complaints from a complainant, which may be received via multiple routes, care must always  be taken to ensure that the specific issues central to the complaint are identified.  Where there is a new complaint in respect of a new issue this should, of course be investigated and a response provided.

Consideration should also been given to any requests for ‘reasonable adjustments’ under the Equality Act 2010 – to ensure services are accessible and means of communication with the complainant are appropriate.

However, there may be circumstances in which a complaint or series of complaints have been addressed appropriately, a full and timely response provided and the complainant remains unsatisfied with the response and continues to raise the same concerns. This can have a disproportionate effect on the time and resources of NHS complaints teams.

If an individual has exhausted the first stage local resolution and has been directed to the PHSO and has been advised of the organisations decision that no further investigation can be undertaken, the NHS organisation should consider the specifics of their own complaints policy. This will often contain provision and process for dealing with an unreasonably persistent complainant.

Care must be taken by organisations to ensure the allocation of the title ‘persistent complainant’ is only designated in line with the organisation policy, where there is clear and sufficient evidence and where there has been consideration  by an appropriately senior member of the organisation. There should be no informal  designation of patients or their families as ‘vexatious’ without due consideration.

Key points to actively manage the situation may include:

• Acknowledge and assess each contact – ensure new complaints are identified
• Confirm in writing with the complainant that no further response to the complaint will be provided. Provide details of any proposed ongoing communication and set out clearly what issues will not be revisited.
• Share the organisations complaints policy with the complainant
• Allocate a single point of contact – advise that communications to other points in the organisation will not be responded to.
• Provide details of proposed communication expectations, including reasonable timescales for any responses and seek the complainants agreement to this.
• Give clear written confirmation of what will / will not be responded to

The 2009 Regulations have not been significantly updated since they were introduced.  They perhaps did not  take into account the increased use of social media for publicising complaints and concerns and the impact this may have on complaints teams which will need to be managed alongside the formal complaints policy and in particular when responding to persistent complainants.

Criticism has been made that NHS bodies do not effectively capture data in respect of who makes complaints and do not fully demonstrate that there is ongoing learning from complaints.

NHS bodies should ensure internal tracking, data reporting and compliance with regulatory requirements. National data collection remains ongoing. There will also be  ongoing external ombudsman and CQC oversight.

In the imminent absence of NHSE, it will be the responsibility of the DHSC to monitor national trends however, Trusts and ICB’s must ensure there is ongoing monitoring and learning from patient complaints as a matter of course.  Regular complaints panels, themed analysis and leadership oversight is important to ensure that learning and recommendations lead to actual quality improvements, staff training and if necessary, changes in policy and approach.

Hempsons supports NHS bodies, ICBs and independent providers with pragmatic, legally robust advice at every stage of the complaints process.

We can assist with reviewing and developing complaints policies, advising on complex or high-risk complaints (including consent, capacity, duty of candour and confidentiality), and supporting the management of persistent or vexatious complainants.

Where complaints escalate or raise wider legal risks, we offer early, strategic advice to help minimise exposure and support a clear, compliant response.

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