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Published 28 March 2018
The Parliamentary & Health Service Ombudsman investigates around 4,000 complaints a year (mainly relating to NHS services), with around 40% of those being upheld in full or in part.
How can NHS organisations go about challenging Ombudsman decisions/recommendations they are unhappy with, particularly where the complaint is about the standard of clinical care?
In this briefing, we look at the impact of a recent case involving the Ombudsman being criticised by the Court of Appeal for the way it investigated a complaint about the care provided by two GPs - Miller v Health Service Commissioner for England.
The case related to a complaint about the standard of care provided by two GPs.
On a home visit to a 76 year old patient, a GP diagnosed a UTI and prescribed antibiotics. Two days later, the patient's wife rang the surgery to report no improvement and a different GP advised over the telephone that the antibiotics had not had enough time to take effect. The patient died two days later from peritonitis due to a burst abscess secondary to undiagnosed diverticular disease.
The patient's wife complained to the GP practice about the care, arguing that her husband might have lived had his condition been correctly diagnosed initially. The practice responded by explaining that there were no signs of peritonitis at the time. Not satisfied with this response, the patient's wife asked the Ombudsman to investigate.
The Ombudsman upheld the complaint, finding that overly brief clinical records and other omissions (e.g. not taking a urine sample) on the home visit, plus the fact the patient was not examined when his wife subsequently telephoned to express concern, amounted to 'service failures' without which the patient would probably not have died. The Ombudsman recommended an acknowledgment of the failures, an apology and a compensation payment of £15,000 for the distress caused.
The two GPs challenged the Ombudsman's investigation by way of judicial review. The High Court found the Ombudsman's approach to have been reasonable. The GPs then took their case to the Court of Appeal.
The Court of Appeal decided that the Ombudsman's initial decision to investigate and the investigation process itself were unfair and therefore unlawful.
Key points to take from this decision include:
Under the legislation governing the Ombudsman, complaints should not be accepted for investigation where the aggrieved person has a remedy by way of proceedings in any court of law (e.g. a clinical negligence claim), unless the Ombudsman is satisfied that, in the particular circumstances, it is not reasonable to expect the person to resort to that alternative remedy.
The Court of Appeal confirmed that the Ombudsman has a lot of latitude when deciding whether or not it is reasonable to expect someone to pursue court proceedings. Seeking a legal remedy via the courts is more likely to be the expected route if the complainant is primarily seeking financial redress. If they are also seeking an apology or wider systemic change, however, the Ombudsman may decide to investigate on the basis that it is not reasonable to expect the complainant to go down the legal route.
What the Ombudsman must do (and failed to do in this case), however, is to give proper, reasoned consideration to the issue of alternative remedy and what would be reasonable in the particular circumstances of the case.
The Court of Appeal confirmed that the Ombudsman has a wide discretion to decide what standard to apply when looking at clinical care.
However, the Ombudsman's approach of choosing a statement of good practice (i.e. in this case, the view of a colorectal surgeon, who was not an appropriate expert to comment on GP care in any event) and measuring the doctors against it was found by the court to be incoherent and unreasonable (and, therefore, unlawful). Without any yardstick of reasonable/responsible practice, there is a risk of this approach being a 'lottery dependent on the professional opinion of the advisor that is chosen'.
The Ombudsman process is meant to be a non-adversarial, non-judicial complaints mechanism, so there are few firm rules about how the process must operate. In line with general legal principles, however, the procedures adopted must be fair.
In this case, the Ombudsman's approach to the investigation was found by the court to have been unfair in a number of ways.
The following key principles can be drawn from this:
It is likely that the Ombudsman will now be looking to review its practices/procedures for such investigations in light of the Court of Appeal's comments. Otherwise, future investigations could be subject to similar challenge.
In the past, challenges to Ombudsman investigations have tended to be relatively uncommon. In 2016/17, for example, the Ombudsman reviewed 60 out of 4,239 concluded investigations in response to review requests (with 11 of these being upheld) and 8 applications for judicial review were made to the courts (5 of which were discontinued or refused permission to go forward to full hearing).
It is possible, however, that the strong stance taken by the Court of Appeal against procedural unfairness in the Miller case, may encourage organisations/practitioners to challenge the Ombudsman more often.
The key question to ask in each case is whether the Ombudsman has taken a 'fair-handed' approach as required by the Court of Appeal?
If the Ombudsman's decision to investigate and/or investigation conclusions fall foul of the 'fairness' principles highlighted above, there may be good grounds to ask the Ombudsman to review its position or - if the situation remains unresolved - to seek to bring a legal challenge by way of judicial review.
Our team combines clinical negligence and healthcare regulatory expertise to advise providers across the health sector on the full range of issues that complaints bring with them, including:
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