General Practitioner's response to the report of an independent review (IR) panel - Full Report
Investigations about aspects of the NHS complaints procedure
Case No. W.6/98-99
General Practitioner's response to the report of an independent review (IR) panel
Complaint as put by Miss X
1. The account of the complaint provided by Miss X was that under the National Health Service (NHS) complaints procedure an independent review (IR) panel was held on 2 December 1997 to consider a complaint she had made about the care provided to her by her general practitioner (GP), Dr Z. The IR report, which made a number of recommendations relating to Dr Z's conduct of clinical consultations and practice arrangements, was sent to Miss X on 3 February 1998 under cover of a letter from the chief executive of North Wales Health Authority (the Health Authority), who were responsible for the administration of the IR. The chief executive asked Dr Z to write to Miss X about the IR panel's findings, and Dr Z did so on 16 February. However, in her letter, Dr Z took issue with the panel's findings, and she did not say what action she would be taking to implement the report's recommendations.
3. The statement of complaint for the investigation was issued on 31 July 1998. The comments of Dr Z and the Health Authority were obtained and relevant documents were examined. One of the Ombudsman's investigating staff took evidence from Miss X, the chief officer of North East Wales Community Health Council (the chief officer), Dr Z, and an officer of the Health Authority.
National guidance and statutory Directions
'.... The chief executive should send the panel's report to the complainant and the practitioner under suitable covering letters .... If the panel has commented about the possibility or desirability of making changes to a practitioner's services or organisation, the chief executive will want to tell the complainant that he is inviting the practitioner to respond personally to the complainant on those matters. Likewise, when the chief executive is writing to the practitioner, he will want to suggest that a response goes from the practice direct to the complainant.'
5. This matter is not referred to in the Secretary of State's statutory Directions to health authorities on dealing with complaints about family health services practitioners (the FHS Directions). However, the Directions to NHS trusts and health authorities about hospital complaints procedures (the Hospital Directions) state:
'A letter reporting the outcome of the trust or authority's consideration of the panel's report shall be sent to the complainant by the chief executive within such time as is reasonable stating—
- any action which the trust or authority proposes to take in relation to any suggestions in the report; and
- where it is decided that no action should be taken on any suggestion, the reasons for that decision.'
'.... Family health service practitioners may .... complain to the [Ombudsman] about the way they have been dealt with under the complaints procedure.'7. The chief executive sent copies of the IR report to Miss X and Dr Z on 3 February 1998. In his letter to Miss X he wrote:
'.... A number of recommendations have been put forward by the Panel which relate to Dr Z's personal and practice arrangements, and I have requested her to reply to you personally ....'
In his letter to Dr Z the chief executive wrote:
'.... I believe the most constructive way forward would be to ask you to reply personally to Miss X, responding to the concerns raised and recommendations made in the Report. If you would .... provide me with a copy of your response, I would be grateful.'
8. Shortly afterwards, Dr Z wrote to Miss X. She began by saying that the chief executive had asked her to write about the concerns raised, and recommendations made, in the IR report; and she went on to comment on specific aspects of the report's conclusions and recommendations. In an appendix to this report I have set out each of the panel's conclusions and recommendations, and the corresponding remarks made by Dr Z.
Evidence of Miss X and the chief officer
9. Miss X told the investigator that she was not wholly satisfied with the IR report, but was pleased that some criticisms had been made of Dr Z. She knew from the chief executive's letter of 3 February (paragraph 7) that he had asked Dr Z to write to her; and she expected Dr Z to say what she intended to do in the light of the panel's findings. However, when she received Dr Z's letter she found that it re-opened arguments addressed by the panel, introduced new evidence, and gave no indication that Dr Z was prepared to accept the recommendations. Miss X was upset by the tone of the letter and said that she found some of the remarks, for example that her memory had faded, insulting. The letter contained no apology. It seemed to Miss X that Dr Z had used the letter to justify her actions. That was particularly difficult to accept as Miss X was, at the time, recovering from the major surgery necessary to treat her condition. Miss X said that she would have welcomed a meeting with Dr Z after the IR panel, particularly to identify why there had been failings in communication between them; but, although Dr Z offered a meeting, the tone of her letter, and the attitude it conveyed, were such that Miss X did not consider the offer to be sincere.
10. The chief officer expressed concern that there appeared to be no mechanism for the Health Authority to check or monitor Dr Z's actions following the IR panel's report; once Dr Z had written to Miss X, that was the end of the matter. The chief officer considered that to be unfair as it effectively gave the 'last word' to Dr Z and left Miss X with no means of challenging the points Dr Z made.
Dr Z's evidence
'[In my letter] I set out my feeling about issues raised in the report as clearly as I could without compromising my own view of how the clinical aspects of the case went. ....
'I appreciate that Miss X may have found my letter of 16th February a little challenging but I do not agree that it is "inappropriate and insensitive". ....'
12. At interview Dr Z told the investigator that the Health Authority had asked her to write about the IR report's 'concerns and recommendations' (paragraph 7); and that she had taken that to mean the report's 'conclusions and recommendations'. However, she did not agree with some of those and did not feel able to write to Miss X that she did. She told the investigator that she had been given an opportunity to comment on a draft of the IR panel's report, but that had contained only the evidence, and she had no argument with it. The conclusions and recommendations, however, had included references to matters about which she had not been specifically asked at the IR; and some were very vague and general, which made them difficult to comment on.
13. Dr Z said that she thought her letter was bringing the complaints procedure to an end; however, she did offer to meet Miss X, as she thought that would be the best way to resolve matters, even if they had to agree to disagree. She said that she was inexperienced in the complaints process; but thought she had behaved reasonably. She had had no intention of upsetting Miss X, and had done what she thought the Health Authority had asked her to do. Moreover, before writing the letter to Miss X, she had asked her medical defence union (the MDU) to look at a draft of the letter; and they had approved it. She had also copied her letter to the Health Authority so that they were aware of what she had written.
Evidence of the Health Authority
'With regard to monitoring relevant to Miss X's complaint, Dr Z's response addressed each of the recommendations of the Panel and it was not considered necessary or appropriate to monitor specific practice arrangements or individual working methods in this instance.'
15. The assistant board secretary to the Health Authority (the secretary) told the investigator that he had drafted the chief executive's letter of 3 February asking Dr Z to write to Miss X. He said that was in keeping with the provisions of the Guidance, the purpose being to invite Dr Z to respond to the IR panel's recommendations and to explain how they would be implemented. He had also asked Dr Z to comment on the 'concerns' expressed in the report, in the hope that that would prompt her to apologise to Miss X, or at least to acknowledge the panel's concerns. He did not consider it to be appropriate in this instance to ask Dr Z directly to apologise. He said that the action Health Authorities could take with a GP following an IR was limited; he had, however, asked Dr Z to send them a copy of her letter to Miss X.
16. The Ombudsman's remit is to consider whether Dr Z acted unreasonably, not whether she complied with the statutory Directions or Guidance, although those are relevant background. However, I note that there is no provision in the FHS Directions requiring GPs to write to complainants about action to be taken in the light of an IR panel's recommendations, although there is such a requirement on NHS trusts and health authorities in respect of hospital complaints. That seems to be an inconsistency which, notwithstanding the independent practitioner status of GPs, disadvantages the complainant and is not in the spirit of the NHS complaints procedure. In the light of his investigation of this complaint, the Ombudsman is proposing to raise this matter with the Welsh Office and the Department of Health.
17. However, there is provision in the Guidance for chief executives to invite GPs to respond to IR panel reports and, in line with that, the chief executive in this case asked Dr Z to write to Miss X. In his letter he asked her to 'respond to the concerns raised and recommendations made'. Dr Z, who was unfamiliar with the mechanics of the complaints procedure, was unsure what was expected of her and took that to mean that she should write about the IR report's conclusions and recommendations. Unlike other sections of the report, which she had seen in draft form, she had not previously seen these sections and took issue with some of their content; so she reiterated her view of those matters. In doing so, she clearly went beyond what is envisaged in the guidance; namely an opportunity for the GP concerned to tell the complainant what has been done to implement any changes or recommendations suggested by the panel. However, I believe that to some extent she was encouraged to respond in this way by the wording of the chief executive's letter. Although the Ombudsman has not investigated the actions of the Health Authority in this matter, I nevertheless invite the Health Authority to reconsider the wording of such letters in the light of this report.
18. Was Dr Z's letter inappropriate and insensitive? She was placed in a difficult position; and she wrote in good faith, having sought advice on the content of her letter from the MDU. I appreciate, too, that she found it difficult to dissemble on matters with which she did not agree. Nevertheless, I believe she failed to consider the matter from Miss X's perspective; and whether it was right to raise her concerns about the outcome of the IR panel with Miss X. The IR panel had taken such evidence as they considered appropriate; and, having considered that evidence, had reached the judgments and conclusions which they set out in the IR report. Dr Z may not have agreed with all of those conclusions, but I do not consider that it was right for her to continue to argue her case with Miss X. If Dr Z thought that the complaints process had treated her unfairly, she could have complained to the Ombudsman (paragraph 6). In my judgment, by writing to Miss X in the way she did, Dr Z contravened the spirit of the IR panel stage of the NHS complaints procedure. I uphold the complaint.
19. I have set out my findings in paragraphs 16 to 18. Dr Z has asked me to convey to Miss X through my report—as I do—her apologies for the shortcomings I have identified.