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Ombudsman eyes role in clinical judgement complaints

The ability to pursue complaints that solely relate to clinical judgement decisions is one of the key jurisdictional issues that the Office of the Ombudsman wants resolved.

Currently, the Ombudsman cannot investigate complaints where they solely relate to clinical judgement issues. The Office’s Annual Report for 2015, published earlier this month, reiterated its call for jurisdiction in this regard.

The Ombudsman investigates complaints from members of the public who believe that they have been unfairly treated by certain public bodies, including the HSE (and public hospitals and health agencies providing services on behalf of the HSE). In 2015, private nursing homes were also brought within the Ombudsman’s remit.  Generally, the Ombudsman recommends that complaints be initially examined by the service provider at local level.

Jurisdiction

In the 2015 Annual Report, Ombudsman Mr Peter Tyndall once again drew attention to jurisdictional issues, including the area of clinical decisions. Last year, the then Minister for Health Leo Varadkar began a review of the matter with the Department of Public Expenditure and Reform and other interested parties.

The Northern Ireland Ombudsman, the UK Parliamentary Ombudsman and many other Ombudsman Offices have full jurisdiction in the area of clinical judgement, noted Mr Tyndall in the report. The indication from Minister Varadkar was that he favoured having the restriction removed.

Without doubt, the Ombudsman’s role is growing in importance vis-à-vis the experience of patients in their interactions with health services and doctors.

The Medical Council, for example, has indicated that its own work on complaints should focus on Fitness to Practise matters. On other complaints, its remit is very limited. The Council’s 2015 report Listening To Complaints found that only 11 per cent of complaints it investigated led to an inquiry into a doctor’s fitness to practise.

“In our view, what’s important is that complaints are addressed properly at the right level and learned from,” said a Council spokesperson. “We are working to inform the Department of Health’s policy decisions in that regard and it will ultimately be the decision of policy makers and legislators as to how the health complaints system evolves.”

The Ombudsman and the Medical Council are close to signing a Memorandum of Understanding. Against this background, the Medical Independent (MI) asked Mr Tyndall how he sees his Office’s role developing in the health area.

“I think the Corbally judgement really had a big impact on what the Medical Council are able to do, and I think that has raised the bar very high. But it has left a very big gap in terms of the generality of complaints,” stated Mr Tyndall. He added that the Ombudsman’s role is fundamentally different to that of the Medical Council.

“We are not looking to identify failure by an individual clinical or health service worker; we are looking at the service provided to the person who complains to us, to see if something went wrong and what, if anything, needs to be done to put it right. So we don’t see ourselves as in the same space as the Medical Council.

“In the UK and Northern Ireland, the bulk of the work of many of the Ombudsmen is tied up with complaints about the health service, but the critical difference is that they are able to look at matters of clinical judgement. And here, we are not. I think that is something Leo Varadkar had expressed a commitment to changing and it is something we will be asking the new Minister [Simon Harris] to continue to press on with.”

It has become “a more pressing issue” in that the Medical Council has no remit to address many complaints. In that context, some people may resort to litigation, with its attendant costs in human and monetary terms, when their fundamental desire is to find out if something went wrong and if it did, to get assurances it won’t happen to someone else.

“Ombudsmen are very well pla-ced to do that, and also to develop systemic learning,” Mr Tyndall told MI.

“If something that has gone wrong is likely to be impacting other people, then the Ombudsman can easily widen the investigation. So, let us say our investigation of the Treatment Abroad Scheme as an example of that — we saw characteristics in some of the cases that came to us from individuals that suggested to us that it is important to have a look at the way the whole scheme is operating, which we are now doing. Clearly, we will wait to see what the investigation establishes. But that’s a different place, if you like, to that occupied by the Medical Council.”

Mr Tyndall said the work of the Ombudsman and Medical Council complement each other. 

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Mr Peter Tyndall, Ombudsman

“So for serious issues of professional malpractice, the body registering and overseeing the profession has a critically important role to play. But in the generality of complaints about care and treatment they just don’t go into that space; they are not to do with any compromise of someone’s fitness to practise and there has to be somebody able to go there.”

Nevertheless, the Medical Council has increasingly emphasised its role in patient safety, especially since instigation of its lay majority. Many see it as the go-to organisation in respect of all complaints concerning clinical decisions and interactions. Is there a danger of public confusion?

Mr Tyndall indicated that a ‘no wrong door’ approach will be important. 

“I think the point about it is, it shouldn’t make any difference where the public go,” he said.

“And that is part of the reason we are completing the Memorandum of Understanding with the Medical Council. It shouldn’t matter. If the member of the public goes to the wrong place, their complaint with their permission should be sent to the right place — they shouldn’t be made to complain again… If it comes to us and it is clearly something that should go to the Medical Council, then we should be able to say to [the complainant], ‘would you like us to send that on for you?’ That is how I see that working.”

With regard to GPs, Mr Tyndall is not of the view that an additional complaints mechanism be created, but rather existing ones should be used. Contrary to some perceptions, his Office can deal with complaints concerning GPs in the GMS (although, as stated, not those solely relating to clinical judgement matters).

Medical advisors

If complaints on clinical judgement decisions are brought under the Ombudsman’s remit, the Office will be engaging clinical advisors in Ireland. It also has an existing service level agreement with the UK Parliamentary and Health Service Ombudsman for the provision of clinical advice.

“Assuming it happens, the plan would be for us to have a number of practising clinicians to act as clinical advisors to our staff. I have found, because I did this job in Wales [Public Services Ombudsman for Wales] with exactly that jurisdiction, it is important to have practising clinicians rather than ones who might have retired some years ago, because practice changes so much.”

Arrangements for outside specialist advice would also be retained.

 “Ireland is a relatively small country, a lot of the people practising in particular specialisms would know each other very well, so it is helpful to have that combination of local knowledge but also people who are completely independent of the scene.”

In Wales, a small in-house team included practising doctors with backgrounds in general practice, surgery and emergency medicine, while outside specialist input was also engaged.

Meanwhile, the Annual Report stated that the Ombudsman’s office has taken responsibility for leading the development of the multi-agency www.healthcomplaints.ie website. Work is continuing on incorporating an interactive form to ensure complaints can be made on all public health and social care matters through the website. Currently, the site can be used to signpost people to an appropriate complaints process.

“It is early days turning that from an information website into a portal but once that is done, that will mean there will be a single place people can go with any health complaint and know it will be brought to the attention of the appropriate body,” said Mr Tyndall.  The target completion date is summer 2017.

It is expected that when www.healthcomplaints.ie becomes a portal, it will yield a vast amount of statistical information on types and volumes of complaints throughout the health sector, which in turn will trigger responses from regulators and the Ombudsman to tackle underlying systemic problems.

Last year was also noteworthy for the publication of the Office’s first ‘own initiative’ investigation. The report Learning to Get Better examined how public hospitals handle complaints. It found that many users of hospital services were afraid to complain because of possible repercussions for their own or their loved one’s treatment; they did not believe anything would change as a result of complaining; and found it difficult to discover how to complain and were frustrated at delays, incomplete answers and failure to provide proper apologies.

While the situation is “improving”, it is not happening at the pace of change that the Office would like, Mr Tyndall told MI.

Key health findings from 2015 Ombudsman Annual Report

Some 243 of the 634 complaints against the HSE/Tusla concerned hospitals. Some 113 involved medical/GP cards.

Of the 610 cases completed in 2015 in respect of the HSE/Tusla, the Ombudsman upheld 70 complaints. Some 23 were partially upheld. In 88 cases, the Ombudsman’s role was that of providing assistance. Some 131 were not upheld, while 54 were outside the Ombudsman’s remit.

The HSE/Tusla accounted for 17.4 per cent of complaints (19.7 per cent in 2014). The civil service (including the Department of Social Protection) was the largest source of complaints at 38.4 per cent, followed by local authorities at 27.6 per cent and then the HSE/Tusla. 

The Ombudsman received 15 complaints about the Medical Council and completed 16 cases related to the Council in 2015. It can receive complaints on the Council’s registration processes. “Some of the complaints received were either outside remit or were premature because they had not been taken up with the Medical Council. The most common issue arising in valid complaints was to do with the recognition of overseas qualifications,” the Ombudsman’s Office informed MI.

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