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Selected Investigations Completed April - September 1997 > Part II, Case no. E.0590/96-97

Part II - Full Texts of Selected Investigations

Case No. E.0590/96-97 - Failure to offer follow-up appointment and response to independent professional review (IPR) report

Matters considered: Failure to offer follow-up appointment - Trust's response to IPR report

Complaint against: Royal Hull Hospitals NHS Trust

Complaint as put by complainant

1. The account of the complaint provided by the complainant was that in May 1995 he underwent surgery at Hull Royal Infirmary (the hospital) which is managed by Royal Hull Hospitals NHS Trust (the Trust). On 23 June he was referred by his consultant physician (the physician) to a gastro-intestinal specialist (the gastroenterologist) for investigation. An appointment to attend his clinic was made for 4 July but the complainant did not receive an appointment card and, because of that, did not attend the clinic. After he missed the appointment, the clinic did not offer a further appointment, and he received one only after he raised the matter six weeks later with the physician.

2. In July 1995 the complainant requested an independent professional review (IPR) of aspects of his surgical treatment under the clinical complaints procedure in operation at the time. The IPR took place on 8 May 1996 but when the complainant received a letter from the chief executive of the Trust setting out the assessors' findings he saw that it had omitted one of their recommendations. He complained about that to the Northern and Yorkshire Regional Office of the NHS Executive (the Regional Office) which had arranged the IPR. They forwarded his letter to the chief executive of the Trust who told him at a meeting that he omitted the recommendation because it was critical of a member of staff who had been on leave at the time of the IPR and had therefore not been able to defend himself at the hearing.

3. The matters investigated were that:

1. there was an avoidable delay before the complainant was seen by the gastro-enterologist because the hospital failed to offer a follow-up appointment after the complainant's non-attendance at the clinic on 4 July; and
2. when the chief executive gave the complainant the findings of the IPR, he failed to include one of the assessors' recommendations.

4. The statement of complaint for the investigation was issued on 11 December 1996. The Commissioner obtained comments from the Trust and relevant documents, including the complainant's medical records, were examined. The Commissioner's staff took evidence from the complainant, Trust staff, the two assessors (the first and second assessors) and staff of the Regional Office although that body is not the subject of the complaint.

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Complaint (a)
Avoidable delay before the complainant was seen by the gastroenterologist and failure to offer a follow-up appointment. The complainant's evidence

5. The complainant told the Commissioner's staff that following an operation on 2 May 1995 he suffered internal bleeding and had to return to the theatre for further surgery. After discharge from hospital he was unable to eat properly and was in pain. At a follow up appointment on 23 June the physician decided to refer him to the gastroenterologist. The complainant was told that he would have to wait only a few weeks because the gastroenterologist had a short waiting list as he was a recent appointee to the Trust. When the complainant saw the physician again on 18 August he told him that he had not received an appointment to see the gastroenterologist. The physician sent a second referral letter and the complainant received an appointment with the gastroenterologist for 29 September.

6. The complainant said that no action had been taken by the Trust staff when he failed to keep the appointment made for 4 July. He wrote to the chief executive of the Trust (the CE) on 19 November 1995 asking why he had to wait five months to see the gastroenterologist. The reply from the medical records manager (the records manager) explained that because the computer was closed at the time a manually completed appointment card was sent in place of the standard computer-generated letter. The complainant said that he had not received the appointment card and was not satisfied with the explanation given by the Trust for the delay in giving him another appointment. He believed that his medical records had been out of circulation because he had made a complaint.

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Staff evidence

7. The medical records outpatient manager (the outpatient manager), with management responsibility for the outpatient clinics at the hospital, told the Commissioner's staff that the administration of appointments was controlled by the patient administration services (PAS) computer system. In certain circumstances clinicians asked for a clinic list to be 'closed' on the computer to prevent further appointments being made. On instructions, appointments could be added to the list manually and a handwritten appointment card sent to the patient in place of the computer letter. The complainant had been given a manually-generated appointment and sent an appointment card for the gastrology clinic on 4 July. Computer lists for clinics that were 'closed' were opened on the day of the clinic to allow the details of patients with manual appointments to be entered when they attended.

8. The computer system generated clinic appointment lists about five days in advance of the clinic to allow staff to locate the patients' medical records. A further list was produced two days before the clinic with any appointments made subsequently. Any handwritten lists of manually-generated appointments were stapled to the computer list. Medical records for the appointment list were forwarded to clinic staff to check and prepare them by entering the name of the consultant and the date of the clinic. The movement of all records was recorded on tracer cards which were retained in the records library. When records moved from one consultant to another, without being returned to the library, it was the responsibility of the consultant's secretary receiving the file to advise the library of the new location by completing an internal tracer. The tracer card for the complainant's records had a definite tracing—as against an internal tracer—recorded for 6 July indicating that the file had been returned to the library after the general surgeon's (the surgeon's) clinic on 5 July.

9. A yellow slip on each set of casenotes was for the clinician to record the outcome of the consultation so that clinic staff could enter that on to the computer system. Follow up appointments or further treatment required for the patient could then be generated by the computer. If a patient on the list had not attended the clinic the medical records were given to the consultant for him to decide whether to allocate another appointment or whether to write to the patient's general practitioner for advice. At the end of the clinic the yellow slips were used to check that instructions were recorded on the computer for each patient, including those who had not attended.

10. The complainant's medical records were at the clinic and had been correctly prepared but were not given to the gastroenterologist for instructions when the complainant did not attend. As his appointment had been manually generated his details could not be recorded on the computer system until he arrived in the clinic (paragraph 7). As he had not attended the clinic and the gastroenterologist had not been given his casenotes nothing was recorded and no new appointment was made for him. The complainant had an appointment with the surgeon the next day (5 July) and it was possible that the staff from that clinic had been too quick off the mark in retrieving the records in readiness for their clinic the following day. If the gastroenterologist had not been given the complainant's records then a pro forma should have been attached to the front of them indicating that they should be returned to him as soon as possible. The outpatient manager said that in her five years in post this was the first complaint of this nature she had received.

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11. The records manager gave similar evidence. She said that the complainant's casenotes should have been available for the gastroenterologist's clinic and that the front of the file should have had a pro forma attached to it indicating that the file was required by another consultant [the surgeon]. She said that she would have expected the clinic clerk to have looked for the notes at the end of the clinic. She accepted that the system had failed and that the Trust had not given the complainant a further appointment when he had not attended the clinic on 4 July. In her view there were several reasons for that: the appointment was manually generated; the complainant had not received the appointment card; he had appointments with two consultants on consecutive days; and because he had made a clinical complaint his notes were required outside the usual routine. She did not consider that the procedure should be changed as it generally worked very well.

12. The gastroenterologist said that he received a referral letter about the complainant from the physician on 26 June 1995. The complainant's clinical notes were date-stamped 4 July which demonstrated that he had been given an appointment and was expected at the clinic. He explained that at the end of a clinic he was given the records of patients who had not attended (DNA patients) or who were unable to attend. If a patient did not attend two successive appointments he wrote to their general practitioner. He could not have seen the complainant's records on 4 July: if he had he would have marked them ''DNA'' and offered another appointment. However as a non-urgent case the complainant was seen within an acceptable time. The gastroenterologist said his waiting list in June 1995 was about two to three weeks. The physician sent him a second referral letter on 20 August, six weeks after the first referral, and the complainant was given a second appointment for 29 September.

13. The gastroenterologist could not explain why the complainant had not received his appointment card for 4 July; to his knowledge that had not happened to any other patients booked for his clinic that day. Clinic staff were aware that records of DNA patients must be brought to his attention at the end of the clinic for his advice. He always dealt with his DNA patients in the clinic completing the yellow slips straight away. He could not explain why the complainant's notes were not given to him at the end of the clinic held on 4 July unless they were not available because the complainant was to see the surgeon the following day. The gastroenterologist stressed that if the records had been in his clinic he would not have released them until he had taken the appropriate action which took only minutes.

14. The CE told the Commissioner's investigator that the Trust could not establish whether or not the appointment card for the complainant was sent but he could see no reason for it not to have been sent. Had the complainant's notes remained in the gastroenterologist's office on 4 July they would not have been available for the surgeon's clinic the next day, and the clinic staff would have been anxious to prepare them for that. According to the tracer card the complainant's notes had not been seen by the gastroenterologist during the period 4 July-18 August. At their meeting on 29 August on this issue the complainant had accepted that the records were needed elsewhere and that the sequence of events had been rapid. The CE believed staff had tried to follow the correct procedure but it had gone wrong; he was unable to identify where. The Trust had acknowledged to the complainant that the system had broken down, had sent a letter of apology and he personally had reiterated that apology. Following this complaint procedures had not changed but they had been reviewed to make sure that they were as tight as possible.

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Findings (a)

15. I have no reason to doubt that an appointment was made for the complainant to see the gastroenterologist on 4 July although I have been unable to confirm that the appointment card was sent. It seems that the complainant's clinical notes were drawn from the record library and prepared for his consultation with the gastroenterologist. What happened then remains supposition but the outcome was that the notes were not passed then or later to the gastroenterologist for DNA action and as a result the complainant was not given a further appointment. The complainant's notes were required for a clinic the next day and probably also in connection with his clinical complaint but the Trust had adequate procedures in place to cope with situations where a patient attended different clinics. Those procedures cannot have been followed on 4 July and the system failed. The Trust have apologised to the complainant for that. The gastroenterologist has said that the complainant was seen within a reasonable timescale taking into account his clinical condition but if the Trust's procedures had been followed he could have received treatment some weeks earlier. I uphold the complaint.

16. I recommend that the Trust:

1. remind all clinic staff of the procedure for dealing with the notes of patients who do not arrive for their appointments; and
2. remind staff of the importance of the control of clinical notes particularly those in use by a number of specialists.

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National guidance

Complaint (b) Failure by the chief executive to include in his report to the complainant one of the assessors' recommendations.

17. The procedure for handling complaints about events in hospitals before April 1996 was set out in circular HC(88)37 (the circular), issued in 1988 by the then Department of Health and Social Security. An annex to the circular set out the procedures for complaints about the exercise of clinical judgment by hospital medical and dental staff—the clinical complaints procedure. It had three stages. The first comprised the steps which were to be taken locally to resolve the complaint. If those failed, the complaint was to be referred at stage two to the relevant regional medical officer (RMO), who was also known as the regional director of public health. The RMO had discretion to decide whether an IPR should be granted. An IPR—the third stage—involved two independent consultants nominated by the Joint Consultants' Committee (the JCC) reviewing the case and making a confidential report to the RMO.

18. The circular advised that on conclusion of the IPR:

'The district administrator [later replaced by ''Trust chief executive'' for Trusts] will .... write formally to the complainant on behalf of the authority [or Trust], with a copy to the consultant. The district administrator will, where appropriate, explain any action .... taken as a result of the complaint but, where clinical matters are concerned, he will follow the RMO's advice regarding the comment which would be appropriate.'

The IPR report—The assessors' recommendation

19. At the end of the IPR report the assessors wrote:

'Because of the extreme conflict between the account of post operative events in statements from the complainant and [the general surgeon], the assessors found it difficult to make specific conclusions. They felt, however, that three general recommendations could be made ...''

The third recommendation was:

'3. The responsibility for discharge of a patient from clinical care should be that of the consultant or his team and certainly not any managerial or administrative personnel. The discharge [of] the complainant from [the general surgeon's] care was actioned by the General Manager of Surgical services in his letter to the patient of 25 July 1995. The assessors felt that this was inappropriate and that had discharge been thought reasonable it should have been [the general surgeon] who should have communicated that to the complainant ....'

20. The complainant told the Commissioner's staff that on 15 December 1995 the clinical complaints adviser at the Regional Office (the complaints adviser) sent him an agreed outline of the complaint to be put to the assessors. Point 7 covered his discharge from care by a non-medical manager instead of the surgeon. The complaints adviser explained that he would be sent the findings of the review, as a report from the CE and on 22 July 1996 he wrote:

'As I explained to you previously, the report is confidential to the RMO, but that we do ask the [CE] to send you the verbatim report in the form of a letter. He is requested to send me a copy of his letter, which I check against the original report ...

'It is entirely up to the assessors what they put in the report. We cannot influence this in any way ...'

22. The complainant said that at a meeting on 29 August the CE admitted that he had omitted in his letter a finding in the report which was a criticism of one of his staff. They discussed the report initially but the CE had then turned to more general matters about his treatment and did not allow the complainant to see the original report. The only justification he gave for his actions was that the general manager concerned had been on holiday and could not defend himself at the IPR. That excuse was unacceptable as the date of the IPR had been known for some time in advance. In the complainant's view, the CE could have overcome the problem if he had told the RMO that he could not disclose the recommendation and had included an explanation in his letter to the complainant. The complainant asked how the public could have faith in the independence of an IPR if it was subject to a CE's editorial control.

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Other evidence

23. In his formal comments to the Commissioner at the start of this investigation the CE wrote:

'My concerns regarding this element of the report are as follows:

1. The letter from the General Manager communicated the Consultant's decision to discharge the complainant as the complainant had refused to meet with the consultant.

2. An interview with the General Manager had not been requested by the assessors and he had not, therefore, had any opportunity to explain the circumstances surrounding the letter he had written.

3. Consequently, the recommendation made by the assessors was based on assumption and the view of the complainant, rather than fact and I felt that it was unfair to criticise the General Manager for trying to resolve the complaint ... '

25. The CE said that it was his responsibility to ensure that what was reported was correct and he also had a duty to protect staff from unjustified criticism. The recommendation was not based on fact and should therefore be deleted. The discharge was a clinical issue which should have been dealt with separately by the surgeon and if he had not recorded it in the clinical notes then that was an oversight on his part. The assessors should have interviewed the general manager to obtain the facts about the correspondence.

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26. He had written to the RMO about the report on 25 June 1996 but he had not received a reply. The complaints adviser told him that the report should be sent out as it was and that he had no right to go back to the assessors. At a meeting with the regional director and director of public health of the Northern and Yorkshire Regional Office (the RDDPH) about other matters he raised the issue of the IPR report. The RDDPH agreed that in the circumstances it was inappropriate to blame the general manager and told him to record their decision and to edit the IPR report. The CE also spoke to the RMO about the matter and he too agreed that the paragraph should be deleted. The RMO did not communicate to the CE that he thought the wisdom of omitting the recommendation was questionable (compare paragraph 28). The CE said it had been a joint decision to edit the report but he took responsibility for doing so. No one had suggested to him that the recommendation could be amended rather than deleted or that a statement should be included explaining why the recommendation had been deleted.

27. The CE said that at his meeting on 29 August with the complainant he explained that the general manager's letter had been responding to the complainant's question about a referral to another clinician. The complainant accepted that he might have misjudged the situation and that the general manager should not be criticised. The CE could not understand why the complainant had the impression that the general manager was on holiday at the time of the IPR; that was not so, but he was away when the meeting was held, on 29 August. By the end of the meeting the complainant was clear about the recommendation and why it had been edited. The CE said that in retrospect he should not have edited the report but at the time he had thought it the right thing to do. He had not made the decision lightly and had done it with the best possible intention and had never intended to mislead the patient. The IPR report had gone out under his signature and he had felt he had a responsibility to ensure that it was based on fact. He had not sought to suppress justified criticism but to ensure that all those involved were treated as fairly as they deserved.

28. The RMO told the Commissioner's investigator that the Northern and Yorkshire Regional Health Authority had always advised Trusts to send out IPR reports to the complainant verbatim. He wrote to the CE on 28 May 1996 asking him to send the complainant the verbatim IPR report. The CE wrote to him on 25 June asking for guidance on the IPR report as he believed it to be incorrect and the RMO discussed the matter with the CE on 10 July. Initially he had not agreed that the IPR report should be amended but as the RDDPH had already advised the CE to do so he thought it unhelpful to give different advice. He thought that the CE gave a reasonable justification for editing the report but the RMO considered that the wisdom of his actions was questionable. The RMO had some sympathy with the view of the assessors but he did not think that the omission of the recommendation had undermined the IPR process (see paragraphs 31 and 33). The CE had the responsibility, backed by the advice he received from the RDDPH, for editing the IPR report.

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29. When interviewed the RDDPH confirmed that it had always been the policy of the Northern and Yorkshire Regional Health Authority (whose functions were transferred in April 1996 to the Northern and Yorkshire Regional Office of the NHS Executive), to issue IPR reports to the complainant verbatim. He recalled a meeting with the CE who told him what he was considering doing with the IPR report. They discussed the matter and he had taken the view that the assessors' recommendation was not based on any findings as the issue had not been dealt with in the body of the report. Further, the general manager was not given an opportunity to explain his actions. In his view, the issue was not central to the complaint and he considered that the intention of the general manager was not to discharge the complainant from care but merely to transfer him to the clinic of another consultant within the same hospital for follow-up care. The RDDPH had agreed with the CE that if the recommendation was omitted the CE would follow up the matter himself and then report to the complainant; on that basis he had thought it the right thing to do. With hindsight it would have been better if the paragraph had been left in the report and a supplementary paragraph added explaining why the CE believed the assessors' recommendation to be erroneous. The final decision rested with the CE backed by the advice given to him by the RDDPH. He did not consider that the actions of the CE had undermined the IPR process.

30. The first assessor said he had seen the national guidance (paragraphs 17 and 18) and had had several telephone conversations with the complaints adviser before the review which was held on 8 May. The complaints adviser told the assessors at the IPR that they should give the complainant the essence of the report orally, including any recommendations. When they met the complainant for the second time on the day of the review they read out to him almost verbatim, the key points that they intended to put in their report. As far as he could remember they told him that there were recommendations in the report but they might not specifically have said that there were three.

31. He had understood that the complainant would receive the full report. When the complainant informed him that one of the recommendations had been edited from the report he was incensed and considered that to be a breach of trust. In his view the action of the CE was inappropriate and had devalued the complaints procedure. The IPR had become neither independent nor professional. The justification given for omitting the recommendation had had no bearing on the issue as it concerned the discharge of a patient which, in his view, was a clinical responsibility. They had not called the general manager to the IPR as a witness because the central issue was the complainant's clinical care and the breakdown of the doctor/patient relationship. In the first assessor's view, if the CE thought that they had not adequately considered the evidence he should have discussed the matter with them rather than take the decision to edit the report.

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32. The second assessor said that he received advice from the complaints adviser who stressed that the assessors should bear in mind that a verbatim copy of their report would be sent to the complainant. He was sent an explanatory leaflet with the circular. The leaflet said:

'The exact process of the review and subsequent process is not completely clear from the Health Service circulars ...

'The report should be in a form that can be understood by and sent verbatim to the complainant. If you make any recommendations, the chief executive of the Trust will be asked to inform the complainant how these are to be implemented, and over what time period.....'

34. At the conclusion of my investigation the present chief executive of the Trust told me that the complainant had been provided with an unedited copy of the IPR report.

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Findings (b)

35. The assessors, the RDDPH, the RMO, the complaints adviser and the CE were all aware that, under the Regional procedures, the IPR report was sent to complainants verbatim. When he received the report the CE sought advice. The complaints adviser told him that he should not approach the assessors; the RDDPH and the RMO—although the latter was not enthusiastic, and said that he was influenced by the RDDPH's reported views—agreed that the CE could edit the report by omitting the third recommendation. The RDDPH has said, however, that in giving that advice he had expected the CE to follow up the assessors' recommendation and to speak to the complainant about it. I cannot tell whether that expectation was communicated to the CE, who said in evidence that no-one had suggested adding an explanatory statement to the report; but in the event no explanation was given until after the complainant complained. The CE has said that he was reluctant to disseminate a report including a recommendation implying what he regarded as unjust criticism of one of his staff. But in my view it was most unwise of him to edit a formal independent report about alleged failures in the service provided by his Trust without the authority or knowledge of those who had written it. Moreover, not merely did he fail to draw his action to the attention of the complainant, but his letter of 10 July 1996 (paragraph 21) contained statements which in effect represented it as containing the full text of the report. Finally, the particular recommendation which was omitted from that letter could have been read as criticising the discharge arrangements within the Trust, for which the CE himself was ultimately responsible. The whole course of action was therefore capable of being represented, or misrepresented, as an attempt to suppress justified criticism, and was therefore extremely unwise. I am not surprised that it caused the complainant to question the independence of an IPR. Indeed, if it were to be repeated elsewhere, it would rapidly undermine confidence in the whole system of investigating complaints. I uphold this complaint.

Conclusion

36. I have set out my findings in paragraphs 15 and 35. The Trust have asked me to convey to the complainant—as I do through my report—their apologies for the shortcomings I have identified and have agreed to implement my recommendations in paragraph 16.

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Last updated: 7 February 2006