The Parliamentary and Health Service Ombudsman's (PHSO) clinical standard, which was called into question by the Court of Appeal earlier this year, leaves doctors 'second guessing' how they will be judged by the watchdog and could result in GPs having to make unnecessary apologies and payments, the MDU has said.
The medico-legal organisation argued that GPs were being put at risk of unfair treatment because the PHSO had failed to provide a clear opinion, test or standard against which clinical decisions can be benchmarked.
The GPC has also voiced concern over the ombudsman's clinical standard, warning: 'We are worried GPs will not be able to comply with the standards.'
If GPs or practices are found to be at fault following a complaint, the Ombudsman is able to recommend that payments, apologies or other changes are made so that lessons may be learned.
However, earlier this year the Court of Appeal overturned a decision made by the PHSO in which two GPs were found to have provided unacceptable care to a patient.The court’s judgment criticised the fairness and scope of the Ombudsman’s procedure for investigating clinical complaints against doctors and other healthcare professionals, describing the process as ‘incoherent’.
The GPs, who had been ordered by the Ombudsman to offer apologies and compensation to the complainant, were jointly represented by the MDU and another medical defence organisation.
The PHSO has since released a new clinical standard, published in August. However, the MDU believes the concerns raised by the Court of Appeal have not been addressed.
Dr Michael Devlin, MDU head of professional standards and liaison said: ‘When GPs face an investigation by the Ombudsman they need an assurance that the procedures will be fair and transparent. One area that has proved problematic from a GP’s perspective is how the Ombudsman assesses their clinical judgments. This requires expert opinion and also a test, or standard, against which clinical decisions can be benchmarked.’
The latest PHSO guidance reads: ‘When we are considering complaints about clinical care and treatment we consider whether there has been "good clinical care and treatment".
‘We will seek to establish what constituted good clinical care and treatment on the facts of the case by reference to a range of material, including relevant standards or guidance.’
Examples of relevant materials include NICE guidance, professional regulators’ codes of practice and guidance provided by royal colleges.
But Dr Devlin said this was ‘not enough’. ‘GPs need to know in advance what overall standard they will be judged by and how that standard will be used by experts,’ he said.
‘For much of general practice there are no standards or guidance and in many cases where they might apply they are not relevant. It is still necessary to assess what the doctor did in the round and the Ombudsman must define a consistent, reproducible standard that can be understood and applied easily.’
He concluded: ‘GPs can’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.’
GPC chair Dr Richard Vautrey said: ‘Judging GPs against the normal practice of our peers appears to have been replaced by an expectation that every deviation from a guideline must be justified and recorded.
‘This focus on clinical and scientific guidelines that are often not based on the reality of primary care sits completely at odds with the how general practice operates, and we are particularly concerned that GPs are working in an environment where they might be found in breach of these new standards despite providing appropriate care.'
A PHSO spokesperson said: ‘We have recently consulted on the clarity of our clinical standard as part of a wider review of how we commission, use and present clinical advice in our decisions. We are carefully considering all feedback, including from the MDU, to see if improvements are needed.’
A final report from the review will be published next year.