Chapter 2 - Investigations
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Case No. W.125/97-98
The conclusions reached by the Independent Review Panel that examined the care provided by Dr B
Body complained against
North Wales Health Authority
Complaint as put by Mr J
1. The account of the complaint provided by Mr J is that on 18 July 1997, his sister, Miss J, travelled to a holiday centre for a short holiday. During the preceding few days she had complained of muscle pain and lethargy. She again felt unwell on the journey to the holiday centre and on the following day, 19 July, she attended a surgery held by a GP. The GP examined Miss J, who said that she had stomach pain and nausea, had been vomiting for two days and was slightly constipated. She also said that she had been diagnosed as having mature onset diabetes in youth (MODY) [a form of non-insulin-dependent diabetes] and that she had not tested her blood glucose levels. The GP diagnosed gastritis [inflammation of the lining of the stomach] and prescribed Maxolon, an anti-nausea medication. Miss J continued to feel unwell and, on 20 July, returned to her home in Widnes. She was admitted to hospital on 22 July suffering from diabetic ketoacidosis (an excess of acid and ketones [a particular group of organic compounds] in body tissues and fluids which develops in diabetics when their condition is getting out of control, and may indicate approaching coma). She died on 31 July.
2. Mr J complained to the practice about the treatment given to his sister by the GP, and subsequently asked the North Wales Health Authority for an independent review of his complaint. The independent review was held on 6 January 1998, but Mr J remained dissatisfied.
3. The matter subject to investigation was that the independent review panel failed to follow national Directions and guidance on the reporting of independent reviews in that it did not adequately address and reach conclusions on its findings of fact and on the advice of its clinical assessors, related to the matters specified in the panel's terms of reference.
Investigation
4. The statement of complaint for the investigation was issued on 1 April 1998. The Commissioner obtained the Health Authority's comments and relevant documents were examined. One of the Commissioner's investigating staff took evidence from Mr J, the GP, members of the independent review panel (with the exception of the convener who was ill, and could not be interviewed) and the two clinical assessors who gave advice to the panel. I have not put into this report every detail investigated; but I am satisfied that no matter of significance has been overlooked. The Commissioner is conducting a separate investigation of Mr J's complaint against the GP. It is not my remit, in this report, to consider whether the panel reached correct conclusions in their consideration of the GP's actions, but to consider whether the panel acted reasonably in drawing up its report.
National legislation and guidance
5. The Secretary of State for Health, in exercise of powers conferred on him by section 17 of the National Health Service (NHS) Act 1977, issued 'Directions to Health Authorities on dealing with complaints about family health service practitioners' (1996). The Directions include the following provisions in respect of the independent review procedure:
'30 The functions of the panel shall be -
'(a) to investigate the complaint; and
'(b) to make a written report to the Health Authority of the findings of its investigation.
'31(1) The functions of the assessors shall be -
'(a) to advise the panel on matters relating to the exercise of clinical judgment by the person subject to complaint; and
'(b) to make a written report to the panel of their advice.
(2) The assessors may make a joint report .... or each assessor may make a separate report.
'33(1) The report of the panel shall include -
'(b) the opinion of the panel on the complaint having regard to the findings of fact.
'(c) the reasons for the panel's opinion ....
'(e) where the panel disagrees with any matter included in the report of the assessors, the reason for its disagreement.'
6. In March 1996 the Welsh Office issued guidance on the operation of the complaints procedure which included at paragraph 7.30:
'Panel's final report
The panel may find it helpful to provide the complainant and any people complained against with the opportunity to check a draft report - which may not necessarily include the final conclusions .... - for factual accuracy .... The assessors' reports should be made available in time for .... circulation with the panel's draft report.'
The Health Authority's formal response
7. On 27 April 1998, the Health Authority's chief executive explained in a letter to the Commissioner's office that the panel chairman had incorporated comments from the panel members and assessors on a draft of the report into a final version. Mr J wanted the report to be issued quickly, and there was no dispute about the factual evidence. The panel chairman decided, therefore, not to circulate an amended draft report to the parties to the complaint but immediately issued the final report, including the assessors' reports which had been received subsequently. The chief executive pointed out that the Health Authority had no authority to question the panel chairman's report and that it was not appropriate for the Health Authority to jeopardise the independence of the panel by seeking to influence it.
The Independent Review Panel report
8. The panel's report is dated 21 January 1998. The Terms of Reference set for the panel required it to consider (a) whether the GP, knowing Miss J was a diabetic, observed proper professional standards when he saw her on 19 July; and (b) whether he kept an accurate record of the consultation. There is no definition of 'proper professional standards'. The panel's report, to which are appended the clinical assessors' reports, contains detailed findings of fact and two paragraphs headed 'conclusion'. These read as follows:
(a)
'Conclusion
'The GP knew that [Miss J] was diabetic and had been diagnosed as MODY. He also knew that this was extremely unusual and that he only had one case, where the patient was obese, which [Miss J] was not.
'The GP made no tests specifically geared to [Miss J's] diabetes but proceeded on the basis of suspected gastritis.
'The GP did not make an examination in depth on 19 July 1997 ....
(b)
'Conclusion
'The Panel found that the notes did record certain findings and the prescribed medicine. If they are a true record of the consultation then they would indicate that whilst MODY was recognised in [Miss J], no specific steps were taken by the GP to establish the precise nature of [Miss J's] diabetic condition.
'If they do not record relevant negative findings which were drawn by the GP then we conclude that they would fall below the requirements of good practice.
'This finding is consistent with the expert evidence of the Clinical Assessors .... '
The clinical assessors' reports
9. The first clinical assessor said in her report:
'It is good practice to check blood sugars and/or urine of diabetics who are ill; and that
'keeping accurate records is of prime importance in good practice. The recording of negative findings, probable diagnosis and future management should, where possible, be included'
The first assessor also observed that the 'panel felt that [the GP's] record of the consultation was accurate but not very helpful. There was very little history, nor were all the symptoms or examination findings recorded'.
10. The second clinical assessor's report included nine observations about the GP's management of his patient:
1 'There are only scanty details of the complaints and examination in the note
2 'No record about the smelling of breath for "Ketone or Fetor (an unpleasant smell)"
3 '[The GP] failed to take and enter family history
4 'No record of advice regarding diet in view of the vomiting
5 'No record regarding enquiry of her blood test
6 'No record of advice to do the test regularly
7 '[The GP] carried out necessary examination and came to a reasonable conclusion after considering acceptable differential diagnosis
8 'Treatment provided was adequate
9 'The record keeping appears to fall below the level of good practice regarding the points mentioned above.'
Comments on the panel chairman's draft report
11. Documents sent to the Commissioner's office by the Health Authority in response to the Statement of Complaint included the convener's and lay member's written comments on a draft of the panel's report. On 15 January 1998, the Health Authority's assistant board secretary (the secretary) conveyed these comments in a letter to the panel chairman as follows:
'I have received the following comments on the Draft Report.
'[The convener] - Agreed, except with final conclusion. This seems to end suddenly!
'I [the secretary] said .... that you [the panel chairman] had not completed the conclusion until you had the Assessors' Report to hand.
'[The lay member] .... felt that the report ended rather abruptly thus appearing damning of [the GP]. Again, I [the secretary] explained that you were awaiting the Assessors' Report before completing.'
The secretary also conveyed in her letter minor, detailed, additions to the text of the draft report which were incorporated in the final version.
12. On 17 January, the convener commented further on the draft report. In a letter to the Health Authority, which was forwarded to the panel chairman, she said:
'We have not concluded whether or not [the GP] observed proper professional standards on the 19th [July 1997] .... '
13. The secretary also wrote to Mr J on 22 January 1998, to let him know that the final report of the panel had been passed to the Health Authority chief executive for circulation. The secretary said:
' .... having compiled the report, received the Assessors' reports and discussed the content of each with the Panel Members, he [the panel chairman] has decided not to circulate a draft for comment, but to issue the Final Report immediately. This is in accordance with the Guidance, which does not require the chairman to circulate a draft report'.
14. The secretary added that the report would be sent to Mr J within the next five working days. On the same day Mr J wrote to the Health Authority and asked for the report to be released immediately. On 23 January, the chief executive sent a copy of the report to Mr J who commented the same day as follows:
'Having very carefully read the report I am sorry to say that I find the report and, specifically, the findings, worded in such a manner as they could quite literally mean all things to all men.
'I am assuming by the content of the report that the panel found the care offered to [Miss J] to be of an unacceptable standard, however this is somewhat confused given the comments of one of the clinical assessors .... '
Mr J's evidence
15. When interviewed, Mr J told the Commissioner's investigating officer that the panel's report was ambiguous: it was not clear whether they were criticising the GP or exonerating him. He also said that the clinical assessors' reports reached different conclusions (see paragraphs 9 and 10).
Evidence of the panel chairman and members
16. The panel chairman told the Commissioner's investigating officer that he had compiled the panel's report and that copies had been sent to the Health Authority, the panel members and the clinical assessors. Before the hearing began he had decided that the panel would need to take the clinical assessors' advice as to what could reasonably have been expected of the GP in the circumstances in which he saw Miss J on 19 July 1997. The clinical assessors' opinion had been that the same standards of care should be expected from a consultation in a holiday surgery as in a normal practice surgery. Following the panel hearing the members discussed what their preliminary conclusions should be. At that stage they did not have the assessors' reports. The members were in agreement that the GP had not examined Miss J for either blood sugar or ketones; but that it was for the clinical assessors to say whether that had been reasonable. The first clinical assessor had told the chairman that she and the second assessor could not agree: but it was not clear to the chairman why that was so. The chairman surmised that the assessors were operating independently of one another, and considered that with hindsight he should have commissioned a joint report.
17. When the chairman received the assessors' reports he thought they were 'a bit thin' but believed that they confirmed the panel's views as expressed in the draft report. He was aware that the assessors had reached differing conclusions. He thought they were irreconcilable but not inconsistent with the panel's draft report, which the assessors had seen. With the benefit of hindsight the chairman believed that he should have followed up the detail of the assessors' advice. The panel had not felt able to reach a conclusion as to whether the GP had observed proper professional standards. The members felt that it would have been good practice for the GP to have tested Miss J's blood and urine, knowing that she was diabetic, but that it was not unreasonable for him not to have done so in the circumstances. The chairman felt that the panel's report had been a 'qualified criticism' of the GP. He said, when interviewed, that he felt the report was 'as damning as it could be in the circumstances'. It was difficult, like 'walking a tightrope', between the need to be fair to the GP, in view of Mr J's anger against him, whilst recognising the family's grief.
18. The chairman added that since this case, he had tried to reach conclusions which were directly geared to the Terms of Reference and had tried to get the convener to sharpen up Terms of Reference. He now also tried to persuade the clinical assessors to produce a joint report where possible, or if not, if their views do not coincide, to explain why in the panel report. In this case, the panel had tried to produce a conclusion which encompassed the conclusions of both clinical assessors who had not agreed.
19. The panel's lay member told the Commissioner's investigating officer that she thought the assessors' reports had been clear, brief and to the point. She did not believe that they had reached different conclusions. She did not see the assessors' reports as in conflict because they related to the standard of care that could be expected in the circumstances of the case - a consultation in a holiday camp surgery rather than in 'a standard general practitioner surgery'. The lay member said that the first clinical assessor had been of the view that it would have been good practice to test blood and urine; the second clinical assessor advised that, in the circumstances, it was reasonable for the GP not to have done so. The lay member's own view was that it would have been good practice for the GP to have tested Miss J's urine; but she did not think that in the circumstances in which the GP had been practising, he had been irresponsible. She said it had been difficult to achieve a balance between the family's 'extreme grief' and the need to be fair to the GP in the knowledge of Mr J's 'extreme anger'.
The clinical assessors' evidence
20. The first clinical assessor said, when interviewed by the Commissioner's investigating officer, that she and the second assessor had been in broad agreement. She had not stated her own conclusions boldly in her report because she understood that the assessors' role was to give advice on what a reasonable doctor would have done in a particular circumstance; but not on whether the doctor had erred in the particular case. That was for the panel to judge. She said that her role was to describe good and poor practice, not to be judgmental. When she received the panel's draft report she telephoned the Health Authority and said that she was 'not unhappy' with any aspects of it. She thought that the GP had observed proper professional standards and that his account of his consultation was that of a reasonable GP. However, he did fall short by failing to recognise that Miss J had a potentially serious condition. He had not given sufficient consideration to the fact that she was diabetic. Standards for the treatment of diabetic patients were different to those which applied to the treatment of illness in other people.
21. The second assessor said, when interviewed, that he believed his role to be to provide independent advice, not necessarily to 'reach a consensus'. He believed that the first six points in his report (see paragraph 10) were 'statements of fact with negative connotations', and related to his conclusions about the GP's record keeping (that it appeared to fall below the level of good practice). He thought that there were areas where the GP could have done better. He said that after he had considered the evidence the GP gave at the hearing and the information provided by Mr J (including the records of two GPs who had seen Miss J after the 19 July consultation) he had concluded that the GP had carried out the necessary examination, considered differential diagnoses and given reasonable treatment. The GP's account of events was supported by the records of the two other GPs who saw Miss J on her return home and who had similarly diagnosed gastritis and prescribed similar treatment.
Findings
22. Independent review panels are required in their reports to provide the parties to a complaint with an opinion, with reasons, having regard to findings of fact and taking account of the clinical assessors' views on any clinical issues involved. The opinion expressed in the report must be that of the panel. In this case, the panel's Terms of Reference as agreed with the complainant, were to consider whether the GP had 'observed proper professional standards' in the care of Miss J and whether his records were an accurate reflection of his consultation with her on 19 July 1997. It is not the purpose of this report to reach conclusions on these matters, but to consider whether the panel did so. I have concluded that the panel did not do so in any meaningful sense. The two paragraphs in the panel's report headed 'Conclusion' (
23. Mr J complained that the panel's report was ambiguous and could be read as 'all things to all men'. I agree. At interview the panel chairman said that compiling the report had been like 'walking a tightrope' between the need to be fair to the GP whilst recognising the complainant's anger and the family's grief. I recognise the need to be fair to all parties to a complaint; but this should not prevent a panel from expressing an opinion on its findings of fact. The chairman said that he believed the panel's report was as damning as it could be in the circumstances. Mr J on the other hand was left with the understandable feeling that the panel had failed to decide one way or the other whether the GP had given his sister a reasonable standard of care. The ambiguities apparent within the panel and assessors' reports also emerged in the evidence the panel members and assessors gave to this investigation.
24. There will be occasions when an independent review reveals a conflict of evidence which a panel cannot resolve, even on the balance of probability, without being unfair to one of the parties. If this happens a panel should explain why it is unable to reach a conclusion. I do not believe that was the case here. Neither do I believe that the differences of view expressed by the clinical assessors were so great as to prevent the panel forming a view on the GP's actions. I conclude that the panel failed to reach a conclusion on the standard of care the GP gave to his patient and failed to explain why. Mr J was left with the belief that this stage of the complaints procedure had failed him. The GP was given no clear statement (save in the area of record keeping) as to whether he had acted reasonably and, if not, of how he might improve his practice. I uphold this complaint.
25. I have considered whether the deficiencies in the panel's report are sufficient to consider it a nullity and, if so, the recommendation I should make. The Directions require a panel to provide an opinion, with reasons, on its findings of fact. In this case the panel failed to do so for at least one - important - part of its Terms of Reference. To that extent it did not, in my view, complete its work. However, I have decided not to invite the Health Authority to ask this panel or a fresh one to reconsider Mr J's complaint. The Commissioner is conducting an investigation of the GP's actions and this should satisfy the complainant's desire for an independent investigation of his concerns.
26. I note that lessons have been learned from this case about the conduct of panels and the process for obtaining and handling independent clinical advice. The Commissioner accepts the comment by the Health Authority chief executive that there is limited scope for a health authority to influence the conduct of independent reviews. The complaint which I have upheld is against the Health Authority as the independent review panel was formally a committee of that Authority. However, the Commissioner is required by statute to copy his reports to the Secretary of State for Wales and I look to the Welsh Office to take steps to ensure that lessons from this report are learned for future independent review panels, whether in this health authority or others in the Principality.
27. I am concerned about some other aspects of the panel's construction and handling of its report. The guidance and Directions governing the operation of the complaints procedure do not, it is true, require a panel chairman to circulate a report in draft to the parties to a complaint. They do, however, state that the assessors' reports should be made available in time for circulation with the draft report. If, as in this case, the draft report purports to contain conclusions, it is only reasonable to wait for the assessors' report(s) before arriving at those conclusions. That was not done on this occasion.
Conclusions
28. This report considers one aspect of a compendium of complaints from Mr J about the care his sister was given and how his complaints were handled. I have set out my findings in
