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Selected Investigations Completed April - September 1998 > Part II, Case no. E.721/97-98
Complaint as put by Dr U
1. The account of the complaint provided by Dr U was that, on 11 November 1996, a man telephoned the surgery about his wife's condition and to ask for an emergency visit. Dr U, who was the on-call GP that day, listened to the man's description of his wife's symptoms and agreed that a GP would visit her as soon as possible after the end of morning surgery. Dr U conveyed her concern about the patient's condition to another GP (Dr V) and asked him to visit, which he did later that day. On 12 November, the patient's condition deteriorated and she was admitted to hospital where she died three days later. On 25 November 1996, the patient's son, who was also registered with the practice, asked Avon Health Authority (the Health Authority) to review the clinical management of his mother's care. An independent review panel (the panel) was convened to consider the care provided to the patient by Dr V. On 2 April 1997, a clinical assessor appointed to assist the panel telephoned Dr U during surgery about the events of 11 November. Dr U was unable to recall what she had said to Dr V about the patient's condition. On 10 June, the Health Authority wrote to Dr U's practice enclosing an extract from the panel's subsequent report. A copy of the final report was sent to the complainant (who remained registered with the practice). The panel concluded that Dr U had failed to pass on clinical information to Dr V and expressed concern at what it saw as the "serious breakdown in communication that occurred on 11 November 1996 between Dr U and [Dr V] ... " The panel recommended that the practice review its internal communication system and write to the complainant to let him know what action had been taken. Dr U considered that she suffered hardship and injustice from the conduct of the panel, including as a result of the way in which the assessor obtained evidence from her. She also considered that the practice should have received a full copy of the panel's report.
2. The matters subject to investigation were that:
- the panel acted maladministratively in reaching a finding that Dr U failed to pass on clinical information to Dr V and that this constituted a failure in communication; and that
- as Dr U provided information to the panel relevant to the complaint, under Article 32 (6) of the statutory Directions to health authorities on dealing with complaints about family health services, she should have been sent a copy of the panel's report, as provided in Article 33(4)(c) of those Directions.
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Investigation
3. The Ombudsman obtained comments from the Health Authority and relevant documents were examined. The Ombudsman's investigator took evidence from Dr U, Dr V and the practice receptionist. The investigator also took evidence from members of the panel and from Health Authority staff.
Complaint (a)
The panel acted maladministratively in reaching a finding that Dr U failed to pass on clinical information to Dr V and that this constituted a failure in communication
National Directions and guidance
4. The Secretary of State for Health, in exercise of powers conferred 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). Those directions include:
Procedure of panels and assessors
32.
(1) In carrying out its investigation of the complaint ... the panel may adopt such procedures as it determines are most appropriate for dealing with the complaint ...(6) The panel or a member of the panel may interview any person who is not a participant* and whom the panel considers may be able to provide information relevant to the complaint.
(7) At any interview or meeting with a panel member or assessors, the complainant and any other person interviewed may each be accompanied by a person chosen by him, who may, with the chairman's consent, speak to the panel or the assessors ... "
*Note: a participant is defined in article 25(b) as the complainant or a person subject to complaint.
5. Guidance from the National Health Service(NHS) Executive about the operation of the NHS complaints procedure entitled "Complaints - Listening ... Acting ... Improving" at Section 22 states the objective that there should be "fairness for staff and complainants alike".
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The panel's terms of reference
6. The terms of reference cited in the panel's report were:
'To consider the care provided to [the patient, deceased] by [Dr V] on 11 November 1996.'
The panel chairman's formal response to the statement of complaint
7. The panel chairman's response to the Ombudsman included:
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Correspondence
8. I set out below the sequence of events and relevant correspondence:
11 April 1997 The first clinical assessor wrote to the chairman enclosing a summary of his telephone conversation with Dr U. He wrote:"Q: Could Dr U recall any of the details given by [the patient's husband]?
A: Legs swollen, pains in back and legs, difficulty getting out to the toilet.
Q: Could Dr U recall what details she had passed to [Dr V] regarding the visit request?
A: Other than she had promised first visit after surgery, no."
10 June The chief executive of the Health Authority wrote to the patient's registered GP at the practice to inform him of the conclusions of the panel. Her letter included:
' ... the problem identified by the panel relates to communication within your practice, and I therefore hope it will be helpful to copy the relevant extracts to you to enable you to address the serious concerns identified by the panel ...
Extract from Panel Conclusions
'The panel concluded that, on 11 November, the information conveyed by [the patient's husband] to Dr U ... included "difficulty in getting up the stairs and back pain" (later confirmed during a telephone conversation between Dr U and [the] Clinical Assessor]). The panel noted the record in the practice log book "swollen private parts". They therefore accepted [Dr V's] evidence that this was the only information conveyed to him, and concluded that Dr U failed to pass on the clinical information she had received by telephone to [Dr V] ...
'The panel therefore recommends that the practice, as a matter of urgency, reviews its internal communications system, with particular emphasis on the accurate and full recording of relevant information which patients convey to GPs and Receptionists by telephone'.
23 June The Medical Defence Union (MDU) wrote to the chief executive of the Health Authority on behalf of Dr U (and her practice) complaining that Dr U had not been asked to give evidence to the panel, but had received a telephone call without prior warning during a busy surgery and so was unable to give a measured response. The MDU observed that Dr V had left the practice; commented that the practice had not been given an opportunity to confirm or dispute Dr V's evidence; and complained that Dr U's evidence to the clinical assessor had been misquoted - she did not tell the assessor that the patient had had 'difficulty in getting up the stairs' as cited in the panel's report. The MDU said that Dr U had made it clear to Dr V that there was serious concern about the patient's physical state. She strenuously denied that she had failed to pass on to him the clinical information she had received from the patient's husband.
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Dr U's evidence
9. Dr U told the Ombudsman's investigator that she received a telephone call from the clinical assessor 'out of the blue' at the beginning of evening surgery. He asked if she was willing to answer some questions. He did not warn her that she or the practice could be subject to criticism by the panel and did not offer her an opportunity to consult the MDU or other source of advice or help. The clinical assessor told her that he was making notes of their conversation. She could not remember whether he offered her an opportunity to verify his notes or to be interviewed by the panel. She told him that the patient's husband had said that his wife was not well, that she had back pain, swollen legs and trouble getting to the toilet. She did not mention stairs.* She also told the clinical assessor that she had told Dr V that she was concerned about the patient's condition.
*Note: The clinical assessor's record of his conversation with Dr U differs from the panel's report in this respect - see paragraph 8.
10. The practice receptionist (the receptionist) told the investigator that she had worked at the practice for eight years. All requests for home visits were recorded by receptionists in the practice log book and a note with all details given by the person requesting the visit was attached to the patient's notes. Clinical information was recorded in the log book by the receptionist on the basis of the conversation with the caller. At the end of surgery the doctors met to decide which of them would visit which patient. They tried to see their own patients wherever possible and took the patient's notes with them. The receptionist took the call from the patient's husband on 11 November. He asked for an emergency visit for his wife. The receptionist took his name, address and telephone number and asked the husband what the problem was. He replied "swollen private parts". The receptionist entered the details into the practice log book, attached a note to the patient's record and put the call through to Dr U.
11. Dr V told the investigator that he had worked at Kingswood Health Centre until 11 April 1997. On 11 November he 'bumped into' Dr U in the corridor after morning surgery. Dr U told him that she had spoken to the patient's husband and thought that his request for an urgent visit could wait until the end of morning surgery. She also said she had told the patient's husband that she would ask Dr V to visit as he had seen the patient most often in the previous couple of months. She had promised the husband that Dr V would visit his wife first and Dr V had agreed that he would go immediately. He said that he did not think Dr U had provided him with any clinical details - indeed, he thought it would not have been appropriate for her to do so as the corridor was busy. He felt that Dr U had discharged her obligation by asking him to visit and that he had fulfilled his by visiting the patient. Neither the patient nor her relatives told him of any symptoms other than that her vaginal area was swollen.
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Evidence of assessors, chair and members of the independent review panel
12. The first clinical assessor said when interviewed that he was asked to prepare a report, for consideration by the panel prior to the panel hearing, about Dr V's management of the patient's care. He wanted to establish whether Dr V was in possession of all the available information when he visited the patient. He also wanted to find out about the "on-call" system operated by the practice. He knew that the guidance on the conduct of independent review panels allowed some discretion and asked the Health Authority's complaints manager whether Dr U could be called as a witness. The complaints manager was unsure and suggested he contact the convener. The clinical assessor agreed with the convener that Dr U should be contacted before the panel hearing. He then spoke again to the complaints manager who provided him with Dr U's telephone number.
13. The first clinical assessor telephoned Dr U and said that he was acting in the capacity of clinical assessor to the panel considering the complaint against Dr V. He told her that he was not pressing her to answer his questions; but that there were certain points in the correspondence he held which he hoped to clarify. He emphasised that Dr U was under no obligation to speak to him. He told her that any answers she gave would form part of the report he would present to the panel to help in its assessment of the case. He could not recall offering Dr U an opportunity to consult her medical defence organisation or to seek its support. Dr U said that she would be happy to answer his questions and asked if she might call him back later, which she did. The first clinical assessor suggested to the investigator that the phrase 'difficulty getting up stairs' used in the panel's report might have been drawn not from his record of his conversation with Dr U but from the panel's discussions in the course of the hearing.
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14. The second clinical assessor told the investigating officer that he did not consider it necessary to interview Dr U because it appeared from correspondence and the notes of a conciliation meeting that the complaint had been discussed openly within the practice. He believed, therefore, that there was no dispute as to whether Dr U had passed on the information given her by the patient's husband. However, at a late stage in the Ombudsman's investigation, the second clinical assessor became aware that Dr V had left the practice before the panel met. He said that, had that information been available to the panel, he had no doubt that Dr U would have been interviewed formally.
15. The panel chairman (the chairman) told the investigating officer that although Dr V was the subject of the complaint and that the panel's remit was, therefore, to consider the care he provided, the panel had also to consider the series of events which preceded it so that the complaint could be set in context. She could not recall being involved in the decision to telephone Dr U but said that she might have authorised it by telephone. The purpose of the call to Dr U was to assist the clinical assessors in their consideration of Dr V's clinical actions. The panel did not discuss whether Dr U should be interviewed as part of the hearing as there appeared to be no conflict of evidence. Dr U had said that she was unable to remember whether she had passed on clinical details: Dr V said she had not. The log book mentioned only "swollen private parts", which supported Dr V's version of events; and there was no record, in the patient's medical notes, of any other symptoms having been reported by the patient's husband when he called the surgery on 11 November. It was not a case of Dr V saying one thing and Dr U another. At the hearing, it was assumed that Dr U had made - or instructed the receptionist to make - the entry in the log book, as it was she who had spoken to the patient's husband. The chairman said that neither she nor the panel viewed the panel's recommendation as critical of Dr U and that she did not consider that Dr U had suffered hardship or injustice as a result of it. It seemed to the panel that there was something wrong with the way in which the practice doctors briefed each other. The panel's comments were directed to the practice, not to Dr U personally.
16. The Health Authority's convener confirmed that the panel's remit was to consider the care provided by Dr V. However, he believed that it was necessary to recognise that the GP was supported by, and shared responsibility for, the practice infrastructure and to consider the extent to which shortcomings in working methods might have affected the doctors' ability to provide care.
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17. The convener said it became evident that the panel might be critical of Dr U as a result of the combination of evidence given by Dr V; the information given to Dr U by the patient's husband and her acceptance that she had received it; and the scant information in the log book. The convener considered that the panel had been critical of the practice systems rather than Dr U, and had expressed its recommendation in those terms. The panel did not intend to suggest that the information in the log book was evidence of what Dr U did or did not say to Dr V; they saw it as evidence of a failure of communications within the practice.
18. The convener was unable to recall any discussion as to whether Dr U should be given an opportunity to obtain independent advice and support although the Directions are clear that, had she been asked to give oral evidence, she would have had a right to be accompanied. The panel's view had been that Dr U might be able to explain why Dr V was unaware of the information supplied by telephone by the patient's husband. The panel did not consider interviewing Dr U although the convener mentioned that option to the clinical assessor during their discussion before the assessor telephoned Dr U. The panel accepted the information provided in the first clinical assessor's note summarising his telephone conversation with Dr U (paragraph 8, April 1997). They did not think it necessary to interview the receptionist as there was no dispute about her involvement in the matter. The convener commented that, in his view, the panel's conclusions were reasonable and based on the evidence. In retrospect he thought that the review could, perhaps, have been more thorough: for example, the panel could have interviewed Dr U.
19. The panel's lay member told the Ombudsman's investigator that the possibility of interviewing Dr U had "crossed his mind": but the matter had not been raised during the panel hearing. He said that he had had some misgivings about criticising someone in his or her absence: but that they had been allayed because the clinical assessor had spoken to Dr U who had said that she could not recall what information she had given to Dr V. The lay member felt that there would have been little point in inviting Dr U to attend the hearing.
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20. The Health Authority's complaints manager told the investigator that she spoke to the convener about his discussion with the clinical assessor. She then contacted the chairman to discuss how the issues raised by the complaint might be clarified. The chairman decided that the clinical assessor should telephone Dr U. If Dr U's answers were sufficient, then no more than a telephone call would be needed. The first clinical assessor's note, which contained a record of his telephone conversation with Dr U, was circulated to panel members. If, after seeing it, any one of them had considered it necessary to interview Dr U, a decision to do so could have been taken at that stage. The complaints manager said that the telephone call to Dr U had not been viewed as, in any sense, a formal interview but simply as a means of clarifying one or two issues the clinical assessor had raised. However, the complaints manager did discuss with the first clinical assessor the option of allowing Dr U to make a written submission should she have preferred to do so.
21. The complaints manager said that she had taken a note of proceedings at the hearing. She thought that the phrase "difficulty getting upstairs", as used in the panel's report (paragraph 8, 10 June) and disputed by Dr U, probably emerged from the panel discussion. She said that she had double-checked the evidence used in the construction of the panel's report but had not noticed that its record of events differed from the wording of the first clinical assessor's note of his telephone conversation with Dr U.
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Findings (a )
22. Dr U has complained through her defence union that she suffered hardship and injustice because she was not invited to give evidence to the panel to explain her actions in relation to the events of 11 November 1996. She has claimed that the panel's report misquoted her telephone conversation with the first clinical assessor, and that she did not say that the patient had had "difficulty getting upstairs". She maintains that, when she agreed to speak to the clinical assessor, she was not warned that she might subsequently be criticised by the panel. The first clinical assessor told the Ombudsman's investigator that he had informed Dr U that he would report the information she gave him to the panel and that it might assist the panel in considering the complaint against Dr V. He also said that he emphasised to Dr U that she was not compelled to speak to him but that she was willing to do so. The chairman and the other panel members considered there to be no conflict of evidence between Dr V's and Dr U's accounts of events, and they therefore saw no need to interview her. They did not consider Dr U to be a formal witness in the proceedings, but someone who could provide background information to help the clinical assessors. However, the second clinical assessor has since said that, had the panel members known about Dr V's departure from the practice, he believed that they would have interviewed Dr U.
23. The Directions and guidance governing the operation of the NHS complaints procedure allow considerable discretion in the way in which independent reviews should be established and conducted. The intention is that the process should be informal and flexible rather than bound by rules. The guidance also states, however, that the complaints procedure should be fair to staff and complainants alike. I do not consider that Dr U was treated fairly. She agreed to give information to the first clinical assessor but did not believe that it would later be used to criticise her. I accept that the panel members did not intend their report to be read as criticising Dr U and believed that the practice as a whole had been responsible for what it considered a serious communication failure. I consider, however, that the report could reasonably be understood to do so. I also disagree with the panel's view that Dr U suffered no personal hardship or injustice as a result of the independent review.
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24. In this case I believe that the panel should have called Dr U as a witness. She would then have been in a position to consider whether to seek expert help and advice and whether to be accompanied at the hearing, as the Directions allow. I uphold this complaint. I have considered whether the failings I have identified in the conduct of the panel in this case are so serious that they constitute a breach of the Directions such as to render the panel and its report a nullity. I do not believe that they do. The Ombudsman is, therefore, prevented by law from recommending that the panel reconvene. In my view, however, the panel's findings, as they relate to Dr U's actions on 11 November 1996, were reached by a significantly flawed process, and as a result cannot be regarded as reliable. I recommend that the Authority communicate my findings on this to those persons to whom they were required to send copies of the panel's report, and to any other persons or bodies whom Dr U and the Authority agree should be notified.
Complaint (b)
As Dr U provided information to the panel relevant to the complaint under Article 32(6) of the Directions to Health Authorities on dealing with complaints about family health services, she should have been sent a copy of the panel's report as provided in Article 33(4)(c) of those Directions
25. I set out below the relevant sections of the Directions:
33(4)(c)
'Subject to paragraph (5), the report of the panel shall be sent to the chief executive of the Health Authority who shall send a copy of the report to -
'(c) any person interviewed under article 32(5)* ...
(5) 'The panel chairman may withhold any part of the panel's report where, in his opinion, this is necessary ... '
*Note: Article 33(4)(c) of the Directions relating to complaints against Family Health Service practitioners requires the Authority to send a copy of the panel's report to any person interviewed under Article 32(5). This appears to be a typographic error. The cross-reference should properly be to Article 32(6) (see paragraph 4).
26 . The NHS Executive's 'Guidance on Implementation of the NHS Complaints Procedure' states (7.31) that the panel's final report must be sent to "any person interviewed by the panel". Subsequent guidance (HSC 1998/059) issued on 17 April 1998 (after the events subject to complaint), suggested that those interviewed by a panel but who were not subject to complaint should receive only those parts of the report which relate to the information given by them: but discretion in this regard still lies with the panel chairman.
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Correspondence
27. On 10 June the chief executive of the Health Authority wrote to Dr U's partner as follows:
'The final report of the panel has been sent to [the patient's husband] and [Dr V] today. As the report is confidential to the parties to the complaint, and has a restricted circulation, it would not be appropriate to copy it to you in its entirety. However, the problem identified by the panel relates to communication within your practice, and I therefore hope it will be helpful to copy the relevant extracts ... '
The Health Authority's formal response
28. The chief executive of the Health Authority wrote in her formal response to the Ombudsman:
'I do accept that according to the Guidance and to the spirit of the Directions, we should have sent a copy of the panel's report to Dr U. The Authority apologises to Dr U for this, and will amend its procedures to ensure that such an error will not be repeated in future cases'.
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Dr U's evidence
29. Dr U said that when she and her practice partners received the Health Authority's letter of 10 June covering an extract from the panel's report, they were aggrieved that they had not been given a chance to comment upon or answer the criticisms it contained. They did not see the extract in context and were unable to judge how much emphasis the full report placed on it or the extent of the blame directed to the practice. They had no knowledge of the evidence given to the panel by Dr V. Dr U and her colleagues also thought it wrong that the patient's husband, who remained registered with the practice, had been given a report which criticised them without first allowing the practice an opportunity to dispute or comment on it. The doctors felt that that might damage the doctor/patient relationship.
The chairman's evidence
30. The chairman told the Ombudsman's investigating officer that she had not exercised her powers under article 33(5) to instruct the chief executive to withhold the full report from Dr U.
Evidence of Health Authority staff
31. The complaints manager said that Dr U had not been sent a copy of the report as the Health Authority had considered it confidential to the parties to the complaint. She had not considered Dr U's conversation with the clinical assessor to have been a formal interview. The panel believed that its criticism highlighted a matter for the practice as a whole not for Dr U personally. The partner to whom the letter covering an extract from the report was sent was the patient's registered GP and so it had seemed appropriate that he should receive it. The complaints manager said that the usual procedure would have been to write to Dr V and ask him to discuss the report with his partners. However, as he had by then left the practice, the usual procedure could not be followed.
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Findings (b)
32. Dr U has complained that she was not sent a copy of the panel's report as provided by Article 33(4)(c) of the Directions, which states that the panel report should be sent to any person interviewed, unless the chairman decides to withhold it. Dr U was not interviewed formally by the panel (I have already expressed the view that she should have been). Whether or not the telephone conversation between the first clinical assessor and Dr U could be regarded as an "interview", I agree with the chief executive that in the spirit of the procedure the Health Authority should have sent a copy of the report to Dr U. I note that the Health Authority has apologised for not doing so. In my view the conclusions of the panel could be interpreted as critical of Dr U and I believe that she should, therefore, have been given the opportunity of commenting on the panel's report, perhaps at draft stage, and of seeing her evidence in context. The inaccuracy in the panel's report relating to the assessor's account of his telephone conversation with her, to which I refer in paragraph 21, might then have been corrected. I uphold this complaint and recommend that the Health Authority now send Dr U a copy of the full report.
33. This case raises the question of how the new NHS Executive guidance, to which I refer in paragraph 26, should be applied in circumstances where a person who gives evidence to a panel, but is not the person complained against, is criticised in the panel's report. I have brought this question to the attention of the Department of Health.
Conclusion
34. I have set out my findings in paragraphs 22-24 and 32-33. The Health Authority has asked me to convey, through my report - as I do - its apologies for the shortcomings I have found and have agreed to implement my recommendations in paragraphs 24 and 32.
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