In responding to the consultation from the Parliamentary and Health Service Ombudsman (the Ombudsman) on its clinical review procedure, the MDU welcomed the recognition that the clinical assessment procedure needs to be fair and transparent. Our main concern is the lack of clarity in the Clinical Standard relied upon by the Ombudsman and expert advisers.
Following a case brought by the MDU and another medical defence organisation on behalf of their GP members, the Court of Appeal in February 2018 criticised the former Ombudsman's clinical standard as 'incoherent' and a 'counsel of perfection'. The MDU believes the new Ombudsman's clinical standard, published in August, has not addressed the Court of Appeal's concerns.
'Although the Ombudsman published its new Clinical Standard after the Court of Appeal decision, it needs further work as it seems unchanged from the previous version,' explains Dr Michael Devlin, the MDU's head of professional standards and liaison. 'GPs shouldn't be left to second guess how the Ombudsman's experts will judge their practice: the clinical standard needs to be clear and reflect the reality of general practice.
'One area that has proved problematic from a GP's perspective is how the Ombudsman assesses their clinical judgements', continues Dr Devlin. 'This requires expert opinion and the standard against which clinical decisions will be benchmarked must be set out clearly so there is no room for misunderstanding.'
The Ombudsman's procedure is not adversarial, but Dr Devlin makes the point that 'GPs need to know in advance what overall standard they will be judged by and how that standard will be used by experts. It is not enough to say there should be 'good clinical care and treatment' and that relevant standards and guidance may be used as benchmarks.'
The main points of our response to the consultation raised concerns about a perceived lack of consistency and fairness in the review process and in some of the recommendations made in previous Ombudsman's reports. For example, the content of the reports varied, with some doctors under investigation only seeing a summary of the complaint being made against them, or not having access to the instructions from the investigating officer to the clinical adviser - both of which meant some doctors felt they did not have enough information to compile a thorough and relevant response.
In another example the adviser and the respondent were of different specialties, leading to questions around whether all advisers are sufficiently acquainted with the standards the respondent would be expected to use in practice. We also queried whether enough weight is given in final reports to opinions from or on behalf of the respondent, as we knew some clinicians under investigation felt their voices hadn't been heard.
Our response pointed to a lack of clarity in what the Ombudsman considered 'good' clinical care and treatment. In our experience, this has led to some doctors being held to unreasonable standards and receiving overly critical reports in Ombudsman investigations. We believe that a clearer definition of what constitutes 'good' care and treatment would allow clinicians to know how the standard is applied, and for the Ombudsman's experts to be seen to apply them consistently when considering doctors' actions.
Transparency in investigations was also an important area to consider. Doctors under investigation were generally not given the opportunity to see the full complaint. However, we believe it may be as beneficial for complainants as for doctors to see the complaint in context as it may help GPs to provide a fuller response and to answer some questions to which the complainant was seeking answers, even if they were not about matters which the Ombudsman chose to investigate.
We also said that respondents should have access to details of the experts and advisers reviewing investigations, as well as to all clinical advice sought by the Ombudsman. This would allow respondents (or their advisers) to identify potential conflicts of interests with experts, comment on their suitability, and flag up possible inaccuracies in the advice sought at an early stage.
Read the full consultation response here.
This page was correct at publication on 13/12/2018. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.