Fair-handed approach? Latest on challenging Health Service Ombudsman decisions

Published 28 March 2018

Summary

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.

What was the case about?

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.

What did the Court decide?

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:

Cross-over with claims

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.

What standard should the Ombudsman measure the care against?

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'.

Fairness of the investigation process

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:

• Those complained about must be given an opportunity to comment on the allegations contained in the complaint before a decision to investigate is made;
• The allegations need to be set out in sufficient detail to enable to those complained about to comment in a meaningful way. Best practice is to disclose the complaint letter itself (plus records of conversations enlarging on it), identifying what is to be investigated from the start;
• Although the Ombudsman is not required to disclose every piece of evidence, material relied on by the Ombudsman (including clinical reports) and material adverse to the Ombudsman's conclusions must be disclosed to those complained about, giving them an opportunity to comment;
• In this case, the Ombudsman's investigation file gave 'every appearance of pre-determination and almost none of a fair handed approach'. For example, although the GPs were given an opportunity to comment on the draft investigation report, this was framed in terms of an opportunity to 'dispute' or 'overturn' provisional findings rather than to inform them. Particularly striking was that the final report contained 'not one trace' of the expert opinions submitted to the Ombudsman by the GPs and no explanation was given for rejecting them;
• It is not appropriate for the Ombudsman to take an approach of 'if it's not written down it didn’t happen'. In the court's view, this promotes 'defensive note-taking by doctors rather than good clinical practice'.

What next?

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.

How can we help?

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:

• Advice on response to individual complaints;
• Complaints procedures advice and training;
• Assistance with responding to Health Service Ombudsman investigations and recommendations;
• Advice on interface between complaints investigations and potential claims;
• Advice on Duty of Candour requirements;
• Reviewing draft serious incident investigation reports/actions plans;
• Advice on independent investigations - e.g. input on scope and draft findings;
• Clinical governance scrutiny to assess the effectiveness of complaints processes, incident investigations, organisational learning and board leadership/culture on learning.