The Dentist Magazine.

DDU reassured by Court of Appeal ruling that Ombudsman's decisions must be fair and just

Published: 19/03/2018

A recent Court of Appeal judgment has criticised the fairness and scope of the former Parliamentary and Health Service Ombudsman’s procedure for investigating clinical complaints against healthcare professionals. 

The GPs in the case were jointly represented by the MDU and another medical defence organisation, but the judgment will also have positive implications for dental professionals.

The court considered exactly how the Ombudsman applied her discretion to investigate a complaint. It found an investigation should not begin where a complainant has another legal remedy open to them (other than complaining to the Ombudsman) unless the Ombudsman, “is satisfied” that it was not reasonable to expect the complainant to use the alternative legal remedy. The Ombudsman must obtain and analyse information related to the complainant’s particular circumstances and not simply refer to general criteria. 

The court also provided welcome clarity on the standard applied by the Ombudsman to determine whether or not the exercise of clinical judgement was reasonable. The judge commented, “The standard chosen by the Ombudsman is beguilingly simple but incoherent. It cannot provide clarity or consistency of application to the facts of different cases. There is no yardstick of reasonable or responsible practice, but rather a counsel of perfection that can be arbitrary. It runs the risk of being a lottery dependent on the professional opinion of the advisor that is chosen. It is unreasonable and irrational and accordingly, unlawful.”

John Makin, head of the DDU said, “This judgment will have positive implications for dental professionals. When their clinical judgement is criticised, the Ombudsman can investigate what happened, reach conclusions and make recommendations if service failure is found. It is essential that the standards used by the Ombudsman to judge the clinical care provided to a patient are appropriate because dental professionals should not be held to unreasonably high standards. It is also important that the Ombudsman stays within its legal powers and does not investigate exactly the same facts as a court would consider as this could present double jeopardy for dental professionals.  

“Those facing an investigation into their clinical practice should have reassurance that the processes being followed by the Ombudsman are fair and just. This judgment is good for healthcare professionals, and will also benefit patients who can be assured that the investigation was properly and fairly carried out.”