Managing a Children’s Mental Health Complaint Without Making it Worse
Managing a Client Complaint Without Making Things Worse: A Guide for Children’s Mental Health Care Providers
So, you have an unhappy client. Or an unhappy parent of your client (we’ll refer to all parents, guardians and other people who may have involvement in a young person’s treatment or service as “parents”). It happens. In fact, it is virtually impossible to deliver health services to clients or to practice a profession without having to deal with an unhappy client at some point. And particularly when dealing with young people in the context of difficult family circumstances, the likelihood of some type of complaint increases dramatically. When a client or their parent lets a health care provider know that they are unhappy, this could be the beginning of a long and arduous process. Or, it could be the opportunity to stop a problem before it starts. The key in managing the situation at each stage in the process is to try to address the client's or their parent’s concern, without making things worse.
Where Complaints Come From
In our experience, complaints arise from all manner of circumstances, but primarily relate to issues with communication, conflicts between family members in which the service provider becomes embroiled, disputes over access to records, or observations/conclusions made by the service provider with which the family does not agree. Note that privacy breaches or disputes about records is the issue with which providers most frequently require legal assistance, but this does not always involve a client or family complaint.
Steps to Avoid a Complaint
Since the best way of dealing with a complaint is to prevent it from arising, consider these steps:
Take the time to properly explain the agency’s policies and procedures, options for the client, and what the client and family can expect.
Create thorough record of advice, communications, and client visits, and periodically revisit these issues with the client.
Ensure the client and family are never surprised – surprises are not usually welcome by clients and often indicate a failing in communication on the part of the provider. Avoid this.
Where the client is involved in a high conflict dispute, be clear about expectations and avoid becoming embroiled in the conflict.
Where Complaints Can Lead
Where a client or their parent has a concern, they can express their dissatisfaction in myriad ways:
in the agency setting, a complaint to their worker or to that person’s manager;
if the provider is a regulated health professional, a complaint to the professional’s College;
a complaint to an insurance company or funder;
a complaint to the person or organization who referred the client;
a complaint to the Information and Privacy Commissioner of Ontario;
an online post about the care provider; and /or
a civil action.
A resourceful and motivated complainant may pursue all of these applicable options in sequence or at the same time!
To a conscientious professional or care provider, any of these proceedings will be distressing, and all of them together could be devastating. Complaints typically surface first in the form of the individual sending a note or making a challenging comment, before any formal steps are taken. If that happens, recognize that you have the opportunity to deal with the complaint informally, before the stakes get higher and the complainant’s position becomes more entrenched. Don’t let emotion or panic get the better of you, keep things in perspective, and ensure that your initial response reduces, rather than exacerbates, the conflict. Getting support at this early stage is always prudent, but make sure it is from someone with experience managing complaints, whether a supervisor within the organization or a lawyer.
Handling an Informal Complaint: Listen, Reflect, and Seek Advice
So how can you address the concern without exacerbating the situation? The first step is to listen and reflect. Whether the complaint is verbal or written, if it is made to you directly, there is often a chance for resolution. What that will look like in any particular case may vary. Some clients will seek a refund or discount on payment for services; others will seek some type of accommodation; and others simply want to be heard. It is important to document the client's concern, as well as any remedy they appear to be seeking, and then to reflect and get advice on this. There are many considerations, including whether the client's concern can be resolved by action on your part or whether the complaint is about a situation over which you have no control. Often, however, there are steps you can take to repair the relationship:
where the concern relates to a mistake, this may involve an apology, some type of remedial action on your part or simply acknowledging the client's concern;
where the concern relates to a judgment call or the exercise of discretion on your part, an explanation of your reasoning or obligations may address the client’s concern; and
where the complaint relates to actions taken to comply with a legal or professional obligation, explaining this may put the client or parent at ease.
In all of these cases, take the time to explore possible solutions with the client. For example, if a client takes issue with an observation or conclusion you documented, you would not be able to change your documentation, but you can offer to make a note to the effect that the client takes issue with that conclusion or observation.
Be careful, however, not to apologize for something you did not do or for action or a decision that you believe was correct, as that can be perceived as an acknowledgement of error on your part. This does not mean you cannot be empathetic or communicate that you are sorry that something happened; indeed, this is often a first step to repairing a relationship. The Ontario Apology Act, 2009 recognizes that apologies do not necessarily constitute an admission of guilt and provides that an apology generally cannot be used in evidence against you in a civil action.
Managing an Error
If you realize that you have made a mistake, you should consider what steps you can take to remedy that error, but always seek advice before doing so. You may have an obligation to advise your insurer. There also may be reporting obligations to consider. If the error involves a breach of privacy, for instance, you likely have an obligation to notify the client, and in some circumstances, the Information and Privacy Commissioner of Ontario. Getting advice from a lawyer as soon as you identify the mistake will help to ensure that you don’t compound the error, and don’t worry that this makes you “look guilty” – regulators and other decision makers view engaging counsel as recognition of the seriousness (not the validity) of the concern and of your professionalism in dealing with it.
Of course, never even think of covering up a mistake or altering a record, even if you may face consequences for the mistake, because the outcome will likely be far worse than if you had simply acknowledged the mistake and began working towards a remedy (always with the assistance of a lawyer).
On the other hand, if the person complaining is the parent of a client, who takes issue with action you have taken that was necessary or required in the circumstances (such as making a report to a Children's Aid Society or refusing to provide information or documentation to them), you will have to navigate whether you can explain your reasons for your action or decision and what you can say in light of other obligations (such as to cooperate with CAS or to maintain the client’s confidentiality).
Responding to a Complaint about a Regulated Professional
Frequently, professionals will only learn about a client's concerns through notification from their regulatory body that they received a complaint. If that is the case, again, the professional’s first call should be to a lawyer. Even a minor complaint about conduct that they are confident was appropriate should not be answered without advice. This is because the answer to a complaint can create more difficulties for a professional, such as where the records reveal a concern that is not the subject of the complaint, or where the tone or content of the professional’s response causes concern. Note as well, that a regulatory body often has no choice but to investigate every complaint.
When responding to a complaint, regulated professionals should remember that every regulator’s mandate is to regulate the profession in the public interest and that their overarching concern is public protection. Disputes with clients or colleagues are often at the root of complaints, but the motivation of the complainant is of little relevance and will not prevent a regulatory body from investigating or considering a complaint if it relates to potential misconduct. Remember as well that the committee considering the complaint will not be concerned with the client's conduct, so a response blaming the client is one guaranteed way that professionals can make a situation worse for themselves. Similarly, criticizing the complainant may feel good and may well be justified, but it could result in the committee reviewing the professional in a negative light. This is not to say that a strong response to a complaint – even one that points out the errors in the complainant's account or their bad faith – is not sometimes warranted, but this type of response is often better communicated by legal counsel.
The reviewing committee will be looking for the professional to identify the client's concerns and to address them in a respectful and professional manner. If the professional could have handled the situation differently, it is often wise to acknowledge that in their response to the complaint as well as to propose steps to address any deficiency in their practice or concern about their conduct. In doing so, they can demonstrate insight and this will be considered by the reviewing committee in their risk assessment. The assistance of a lawyer experienced with regulatory complaints will be invaluable in communicating insight without making admissions against the professional’s interest. The lawyer may provide context to help the regulator appreciate that the professional’s conduct does not give rise to any risk to the public, or that the risk can be managed. This may involve providing an alternate explanation the client's account of events, identifying and taking steps to address any errors on the professional’s part, or even retaining an expert to comment on the case. A careful and complete response to the complaint will increase the likelihood that the reviewing committee disposes of complaint with as little impact on the professional as possible, while fulfilling their mandate to protect the public.
Managing Complaints to Insurers, Payment Providers or Others
If the client's complaint about a health care provider or agency is not (only) to a regulator but to an insurer or funding provider (including the Ministry), this calls for a similar response, but one that focuses on the insurer or funder’s concerns: ensuring the appropriateness of past claims for payment and restoring confidence in the validity of future claims. Ignoring the insurer’s or funder’s request, refusing to provide information, insisting that the provider’s professional judgment ought not to be questioned, or criticizing the review process, are all ways in which the service provider can make the situation worse.
All claims for payment must be justified. This is normally accomplished through the submission of records and, where appropriate, an explanation of the billing. Where the records are not supportive of the claim for payment, an explanation should still be provided, including regarding the lack of records to justify the claim. If payment was claimed in error, it is often better to identify that error, including how it occurred, and to propose a remedy. Hoping that an error you have found will not be detected by the insurer or payment provider is generally not a helpful strategy.
Conclusion and What to Do
A complaint from a client will always be upsetting, and notice of a complaint or investigation from a regulator, insurer or payment provider can be devastating. It is important not to rush to respond, but at the same time not to be paralyzed by fear. With expert assistance from the outset, many complaints can be resolved at an early stage, and others can be addressed without serious consequences.
You should:
Engage your lawyer as early in the process as possible
Be honest, forthright and complete in discussing the situation
Identify and provide copies of all relevant records to your lawyer (with the authorization of your supervisor)
Prepare a summary of your response
Compile a list of everyone involved or who has knowledge of the situation
Seek support for your stress – these situations can be traumatic
You should not:
Discuss the situation with anyone but your lawyer (while your supervisor may need to be involved, unlike conversations with your lawyer, discussions with your supervisor are not subject to legal privilege and can therefore be asked about)
Create notes or records after getting notice of a complaint (except those requested by your lawyer)
Provide more information or documentation than is requested by a regulator
Contact the complainant while the process is ongoing (if the client is still an active ongoing client, this is something to discuss with your lawyer)
Forget about the client’s needs for ongoing service or treatment – this will need to be managed
Panic!
For assistance in managing a client complaint or regulatory investigation, contact us.