The basis for my determination of the complaint
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- In general terms, when determining complaints that injustice or hardship has been sustained in consequence of service failure and/or maladministration, I generally begin by comparing what actually happened with what should have happened.
- So, in addition to establishing the facts that are relevant to the complaint, I also need to establish a clear understanding of the standards, both of general application and those which are specific to the circumstances of the case, which applied at the time the events complained about occurred, and which governed the exercise of the administrative and clinical functions of those bodies and individuals whose actions are the subject of the complaint. I call this establishing the overall standard.
- The overall standard has two components: the general standard, which is derived from general principles of good administration and, where applicable, of public law; and the specific standards, which are derived from the legal, policy and administrative framework and the professional standards relevant to the events in question.
- Having established the overall standard, I then assess the facts in accordance with the standard. Specifically, I assess whether or not an act or omission on the part of the body or individual complained about constitutes a departure from the applicable standard.
- If so, I then assess whether, in all the circumstances, that act or omission falls so far short of the applicable standard as to constitute service failure or maladministration.
- The overall standard I have applied to this investigation is set out below.
The general standard – the Ombudsman’s Principles
- In February 2009 I republished my Principles of Good Administration, Principles of Good Complaint Handling and Principles for Remedy. These are broad statements of what I consider public bodies should do to deliver good administration and customer service, and how to respond when things go wrong. The same six key Principles apply to each of the three documents. These six Principles are:
- Getting it right
- Being customer focused
- Being open and accountable
- Acting fairly and proportionately
- Putting things right, and
- Seeking continuous improvement.
- Two of the Principles of Good Administration particularly relevant to this complaint are:
- ‘Getting it right’ – which includes public bodies acting in accordance with recognised quality standards, established good practice or both; acting in accordance with their statutory powers and duties and any other rules governing the service they provide; and taking reasonable decisions, based on all relevant considerations.
- ‘Being customer focused’ – which includes responding to customers’ needs flexibly.
The specific standards
Legal standards
- The National Health Service (Personal Medical Services Agreements) Regulations 2004 (PMS Regulations) prescribe the provisions which must be included in the agreements concerning the circumstances in which GPs can remove patients from their lists.
- Paragraphs 18 to 27 of Schedule 5 to the PMS Regulations set out the provision relating to the removal of patients from a GP’s list.
- The PMS Regulations agreement signed by Dr Hampson sets out his specific duties and powers as to the removal of patients. It is that agreement which imposes a duty on Dr Hampson to comply with the mandatory conditions which the PMS Regulations require to be included in the agreement. Paragraph 7.8.6 of the agreement in this case states:
‘… where the [Practice] has reasonable grounds for wishing a patient to be removed from its list of patients which do not relate to the applicant’s race, gender, social class, age, religion, sexual orientation, appearance, disability or medical condition, the [Practice] shall … notify the patient in writing of its specific reasons for requesting removal.’
- Paragraph 7.8.8 states:
‘… the [Practice] may only request a removal under paragraph 7.8.6, if, within the period of 12 months prior to the date of its request to the PCT, it has warned the patient that he/she is at risk of removal and explained to him/her the reasons for this.’
- There are some exceptions to this requirement. For example, if the GP has reasonable grounds for believing that the issue of such a warning would be harmful to the physical or mental health of the patient or would put at risk the safety of the GP, practice staff or any other person present on the practice premises; or where, in the GP’s opinion, it would ‘not otherwise be reasonable or practical’ to give such a warning. The GP should record in writing the date of any warning given and the reasons for giving such a warning as explained to the patient, or the reason why no such warning was given.
Professional guidance
- The Royal College of General Practitioners (the RCGP) are responsible for maintaining standards in general medical practice. In September 2004 they published Removal of Patients from GPs’ Lists: Revised Guidance for College Members (the RCGP Guidance). This provides information about the situations that may justify removal from a GP’s patient list. These include unacceptable behaviour such as physical violence; physical, verbal or discriminatory abuse (including threats or gestures); sexual or racial harassment.
- The RCGP Guidance states that occasionally, people may persistently act inconsiderately, that is, their behaviour may fall outside that which is normally considered to be reasonable. In such circumstances there may appear to be an irretrievable breakdown in the patient-doctor relationship. However, it is under these conditions that the potential for misunderstanding is at its greatest. Therefore, it is important not to lose sight of the cause of the breakdown and to remember that the circumstances surrounding the apparent breakdown may be perceived differently by the patient and the doctor.
- The RCGP Guidance sets out a number of steps to be taken within a practice before a decision is taken to remove a patient, including consideration of whether any aspect of the running of the practice is contributing to the problem, for example, a receptionist with poor interpersonal or communication skills. It also suggests that the practice consider implementing solutions or procedures that might help, such as more thorough training of practice reception staff. The RCGP Guidance also suggests that the practice should consider arranging a meeting with the patient to discuss the problem.
The Practice’s policy
- The Practice has a patient removal policy that details the circumstances in which a patient can be removed from the list and the process for doing so. One situation which is listed that justifies removal is violence. Included in the examples given are the following:
- When a patient is physically violent or threatening towards a doctor, Practice staff or other patients on the Practice premises.
- When a patient gives verbal abuse or makes threats towards the doctor, Practice staff or other patients.
- The Practice’s ‘zero tolerance’ statement says:
‘Please treat doctors and staff as you would expect to be treated by them, with politeness and respect. Violence and aggression towards doctors and staff will not be tolerated and in instances where this occurs severe steps will be taken.’
- The Practice’s policy states that in the above circumstances the incident will be reported to the Practice Manager and all staff involved will complete an incident report and the matter will be brought to the attention of the Practice partners. The case will then be discussed at a Practice meeting. If it is decided that the patient does not need to be removed from the list immediately, a warning letter will be sent to the patient stating the reasons for potential removal. The policy states that the patient will be given an opportunity to respond to the Practice.
