Complaint against: North Wales Health Authority - Full Report
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Health Service Ombudsman for Wales
Investigations about aspects of the NHS complaints procedure
Full report
Case No. W.65/98-99
Health Authority's operation of complaints procedures
Complaint against:
North Wales Health Authority
Complaint as put by Dr X
1. The account of the complaint provided by Dr X, a general practitioner, was that as a result of his being the subject of a complaint by a member of the public (Mr A), he was asked to attend an independent review panel (IRP) meeting set up in accordance with the NHS complaints procedure by North Wales Health Authority (the Health Authority). Dr X said that in correspondence about the complaint Mr A had on several occasions indicated that it was his firm intention to pursue legal action against him in respect of the incident which gave rise to the complaint. Dr X maintained that the IRP should not have been convened, as the Secretary of State's Directions on dealing with complaints about family health service practitioners (the Directions) stated that complaints should cease to be investigated if a complainant intended to pursue a remedy by way of proceedings in a court of law.
2. The complaint I investigated was that it was inappropriate for the Health Authority to continue dealing with this matter as a complaint under the NHS complaints procedure.
Investigation
3. The statement of complaint for my investigation was issued on 2 October 1998. I obtained the comments of the Health Authority; and relevant papers were examined. One of my investigators took evidence from Dr X and his Medical Defence Union (MDU) representative, the Health Authority's convener, the lay chairman of the IRP, the assistant secretary to the Health Authority (the secretary), who provided secretarial services to the convener, and Mr A.
National Directions and guidance
4. On 1 April 1996 new national procedures for handling complaints in the NHS were introduced. In March 1996 the Secretary of State for Wales gave Directions to health authorities on dealing with complaints about family health service practitioners. The Directions include:
'5. A matter which is the subject of a complaint shall not be investigated or shall cease to be investigated in any case where in relation to that matter the complainant has stated or states, orally or in writing, that he intends to pursue a remedy by way of proceedings in a court of law';and
'21-(1) On receipt of a request for a panel .... a convener shall either—(a) .... determine that a panel should be appointed ....
(b) ask the Health Authority to consider whether the complaint discloses any matter which the Authority considers should be referred to .... the professional regulatory body of the family health services practitioner who is subject to the complaint (in Dr X's case the General Medical Council (GMC)) ....
(c) .... refer [the complaint]back to the family health services practitioner for further investigation or to the conciliator; or
(d) determine that no further action should be taken.'
5. Article 21 of the Directions goes on to say:
'Where the convener takes action under .... (b) .... and the Health Authority determines that the matter should be referred to the professional regulatory body .... the convener shall cease to take any action in connection with any matter which is so referred ....' until such time as the body decides 'that no action should be taken in connection with the matter.'
6. In March 1996 the Welsh Office issued guidance to complement the Directions entitled Complaints, Listening ... Acting ... Improving.
Under the heading 'Possible Claims for Negligence', the guidance says:
'The complaints procedure should cease if the complainant explicitly indicates an intention to take legal action in respect of the complaint'
It goes on to explain, however, that:
'Even if a complainant's initial communication is via a solicitor's letter, the inference should not necessarily be that the complainant has decided to take formal legal action.'it may not be clear whether the complainant simply wants an explanation and apology .... or whether the complainant is in fact seeking information with formal litigation in mind'.
7. With specific regard to setting up IRPs, the guidance says:
'Conveners are advised that they should not set up an Independent Review panel where any legal proceedings have commenced, or there is an explicit indication by the complainant of the intention to make a legal claim ....; or
.... it is considered there is a prima facie case for a disciplinary investigation .... so that referral by the convener to the appropriate person in the [Health Authority]is considered necessary ....'.
Documentary evidence
8. In their letter to me, and in correspondence to the Health Authority, the MDU quoted extracts from several of Mr A's letters which, they maintained, demonstrated his intention to take legal action. For ease of reference I now set out those extracts and others which I consider relevant.
In his original letter of complaint to Dr X's practice manager Mr A wrote;
'I have no interest in a fudged enquiry. I will pursue my complaint against Dr X in any legal manner I consider fit to bring about his removal from the list of medical practitioners.'
(ii) Undated but received on 30 April
In a letter to the Health Authority enclosing a copy of his letter of 27 April to the practice manager, Mr A wrote;
'.... I will not withdraw from action against Dr X. .... Dr X failed in his duty ....'
After meeting Dr X's partner, in Dr X's absence, Mr A wrote to the practice manager;
'.... in retrospect we do feel that a complaint of Medical negligence should be addressed.'
Mr A wrote to the Health Authority asking them to suspend Dr X from clinical duties pending the outcome of his complaint. He told them that he was copying his letter to the British Medical Association for them to 'hold on file pending the failure to reach an acceptable conclusion'
Dr X wrote to the Health Authority quoting the Welsh Office guidance (paragraph 6) and saying that, because Mr A had mentioned medical negligence and said "I will pursue my complaint against Dr X in any legal manner ...." (paragraph 8(i) and (iii)), the MDU had advised that Mr A's complaint should not be dealt with under the NHS complaints procedure.
The Health Authority, who had already referred his complaint to the convener, asked Mr A to confirm his intentions in respect of legal action. The letter included;
'If you have begun, or intend to begin, legal proceedings an investigation under the NHS complaints procedure cannot be pursued.'
Mr A replied;
'I confirm that until I receive the outcome of the Convener's consideration I will not be pursuing legal action, however, my strength of feeling over this matter dictates that unless the outcome of the Convener's consideration is acceptable to ourselves, then I reserve the right to pursue action against Dr X.'
In an application made under the Access to Health Records Act 1990, Mr A wrote;
'I am pursuing a claim against Dr X'.
Dr X's and the MDU's evidence
9. Dr X told my investigator that he had been unable to attend the meeting on 7 May because he was abroad, so he had not had the opportunity to respond in person to Mr A's allegations. He remained willing to meet Mr A to discuss his concerns, although he considered that a face to face meeting would be unlikely to achieve anything. He was prepared to participate fully in an IRP, if required; but he had been advised by the MDU that, as Mr A was alleging medical negligence and intended taking legal action, it was not appropriate for the NHS complaints procedure to continue.
10. In their letter to my office on behalf of Dr X, the MDU wrote that Mr A had 'on many occasions, given every indication that it is his firm intention to pursue legal action arising out of the incident which is the subject of this complaint.' They referred particularly to the exchange of correspondence on 4 and 5 June (paragraph 8(vi) and (vii)), and the application for health records (paragraph 8(viii)), and said that Mr A's reply on 5 June 'simply indicates that legal action will be postponed until the complaints procedure has been pursued to a conclusion.' The MDU representative who accompanied Dr X when he was interviewed by my investigator said that the documents quoted at paragraph 8 above made it clear that, ultimately, Mr A was seeking compensation and would turn to the courts if he was able to obtain a finding of sub-standard care through the complaints process. He said that the extracts at paragraph 8(i) and (ii) alone made it clear what Mr A's objectives were; and such objectives could not be achieved by means of the NHS complaints procedure. He said it was his and the MDU's view that Mr A was paving the way for a future legal case and that it was therefore inappropriate for the complaints process to continue. The MDU representative said that the Health Authority's letter of 4 June had invited the reply Mr A gave, and that that, at best, was ambiguous: Mr A had not said he was withdrawing from legal action. The MDU were sure that even after an IRP Mr A would continue action by other means; and they considered it unfair to require Dr X to attend an IRP in such circumstances.
Evidence of other witnesses
11. Mr A told my investigator that he had been unhappy with the way Dr X had treated Mr A's father, who died on 26 April 1998. He wanted him to explain and apologise for his actions, and he wanted him to know how distressed the family were. He had expected to meet Dr X at the meeting on 7 May, but Dr X was not there. After the meeting, which Mr A thought had concentrated too much on Dr X's attitude, he wrote to the practice to ask about the care Dr X had provided. He had used the term 'medical negligence' (paragraph 8(iii)) because he believed that Dr X had neglected his father; and he hoped that Dr X would come forward and explain his actions. Mr A said that he had not been familiar with the complaints procedure when he first lodged his complaint; but he was pleased when an IRP was proposed, and hoped that that would provide the resolution he sought. He said that he would regard it as a satisfactory outcome if the IRP found against Dr X, and if that led to an endorsement on Dr X's employment record. If, on the other hand, the IRP found in Dr X's favour he would have to consider what other options were open to him, including legal action. In saying that he would pursue his complaint in any legal manner (paragraph 8(i)), he had meant only that he would use all means that were lawful. However, he felt strongly that Dr X had acted in an unprofessional and discourteous manner, and that he should be expected to answer for his actions. He said he would consider whatever means were open to him to bring that about.
12. The convener said that he and the lay chairman had given much thought to Mr A's intentions with regard to legal action. He said that when the Health Authority wrote to Mr A about that, Mr A had made it clear that he was not taking such action at present but reserved the right to do so in the future. The convener saw that as a 'threat to the future' which Mr A was entitled to make, rather than the explicit indication of an intention to take legal action which the guidance said should cause the complaints process to cease (paragraph 6). He said that, at the time, he had been unaware of the Directions, which did not use the term 'explicit' when referring to the complainant's intentions; but, even if he had known of the Directions, he did not think he would have reached a different conclusion. The convener said that he had seen no reason to refer the matter to the Health Authority to consider the possibility of a disciplinary investigation. After taking lay chair and medical advice he had decided that an IRP was appropriate to resolve the complaint. If the IRP raised any issues of a disciplinary nature, the Health Authority would then pick those up to decide whether any disciplinary action was necessary.
13. The lay chairman explained that he first saw the complaint after the Health Authority wrote to Mr A asking him to clarify his intentions with regard to legal action. He said that it was perfectly reasonable for Mr A to reserve his options for the future, and there was no evidence available to him or the convener to suggest that Mr A had already started legal action or that he explicitly intended to do so. That being so, it was appropriate for the complaints procedure to continue. There remained a good chance that an IRP would resolve Mr A's concerns. The lay chairman said that it was not within the spirit of the complaints procedure to exclude a complaint just because legal action was mentioned, or because threats or legal jargon were used when the complaint was made. He said that, if that alone were sufficient to bring the complaints procedure to a halt, it would have far reaching implications for the procedure and the public's perception of it.
14. In the Health Authority's response to the complaint at the start of my investigation the chief executive supported the decision to clarify Mr A's intentions; and he said that the convener's decision to hold an IRP was 'in keeping with the spirit of the complaints procedure and did not contradict any guidance or directions received from the Secretary of State.' He went on to say; 'The complainant in this case had confirmed in writing that he had not taken legal action, whilst retaining his right to do so if he remained dissatisfied. There was no evidence to suggest he had taken or proposed any steps towards legal action. If all references to legal proceedings made by a complainant were to be accepted without question as an expression of explicit intention to pursue this course of action, and therefore preclude any investigation under the NHS procedure, the effectiveness of the NHS complaints procedure would be severely restricted ....'.
15. The secretary, who wrote to Mr A on 4 June about his intentions with regard to legal action (paragraph 8(vi)), told my investigator that he did not accept that his question had led Mr A to respond in a particular way. However, Mr A had probably gone further than most complainants in setting out his future options. The secretary said that he was not asked to consider whether there was any need to refer the matter for consideration of disciplinary action, but from his experience of matters dealt with under the terms of service for general practitioners, he saw nothing to suggest that that was necessary in this case.
Findings
16. The Directions require consideration of the complaint to cease when the complainant has stated orally or in writing that he intends to pursue a remedy by way of proceedings in a court of law. They also require a convener to consider whether any complaint about a family health service practitioner should be referred to the Health Authority to consider whether it discloses a matter which it might be appropriate to refer to the practitioner's regulatory body; and they require the convener to cease action while that consideration is in train.
17. Dr X and the MDU maintained that it was clear from Mr A's correspondence that legal action was his ultimate intention, with the aim of achieving compensation for medical negligence; and that the complaints process should therefore cease. I do not agree. Clearly, Mr A believes that Dr X failed to achieve a satisfactory professional standard when dealing with Mr A's father and because of that, he expects sanctions to be imposed on Dr X. However, although he is determined to take whatever action he considers necessary to bring that about, and that may eventually entail recourse to law, I do not believe it can accurately be said that Mr A currently intends to commence legal proceedings.
18. What Mr A has said is that he will pursue his complaint, 'in any legal manner I consider fit'. While that could include legal proceedings it does not exclude other options such as pursuing the NHS complaints procedure, making a complaint to the GMC, or making a complaint to me. A statement about taking action in any 'legal manner' does not amount to a stated and current intention to commence legal proceedings—indeed, in my view, that is not the most natural meaning of the expression; and Mr A explicitly says, in his letter of 5 June to the Health Authority (paragraph 8(vii)), that he will not be pursuing legal action although he reserves the right to do so. It seems to me that in putting the interpretation they have on the extracts I have quoted from Mr A's letters, Dr X and the MDU have assumed that the IRP's findings will be such as to reveal grounds for action in a court of law. That may or may not be so: my investigation has been confined to the procedural issue; and I express no view on the substance of Mr A's complaint. Mr A has not, himself, referred to compensation; and although he is, at this point in time, convinced that Dr X's actions were such as to merit sanction, there is no certainty that he will still think that once he has had the benefit of the IRP's consideration and report.
19. Turning to the question of possible referral to a regulatory body, I consider that it was reasonable for the convener to conclude that it was not necessary to refer the matter at the convening stage to the Health Authority to consider the possibility of a disciplinary investigation or referral to the GMC. I note that the secretary, who had experience of disciplinary matters, also considered that to be inappropriate at the convening stage.
20. I am satisfied that the convener took the correct decision in deciding to continue the complaints process and I consider that the IRP should now proceed without further delay. I do not uphold the complaint.
Conclusion
21. I have set out my findings in paragraphs 16-20. The Health Authority have told me that on receipt of my report they will make arrangements for the IRP to proceed.
Appendix - The IR panel's conclusions and recommendations together with Dr Z's remarks.
