Home > Publications > Selected cases— Parliamentary > Selected Cases and Summaries of Completed Investigations: April 2001 to September 2001 > Case No. C.567/01
Selected Cases and Summaries of Completed Investigations
PCA 6th Report – Session 2001-2002
Chapter 1
DEPARTMENT FOR WORK AND PENSIONS
Benefits Agency: inadequate investigation into a complaint against the conduct of an examining medical practitioner
As part of her renewal claim for disability living allowance Mrs X was examined by an examining medical practitioner. Mrs X complained about a number of aspects of the doctor’s conduct. Medical Services, who provide a national medical service for the Benefits Agency (BA), failed to investigate Mrs X’s complaint adequately. Although there had already been a high level of similar complaints against the same doctor, Medical Services considered Mrs X’s complaint in isolation from the others. The number of complaints against the doctor continued to grow; but this did not alert Medical Services to the fact that they faced an escalating problem over the doctor's performance. They took no action to supervise or monitor his performance until after the Ombudsman became involved.
Following the Ombudsman’s intervention BA agreed to make Mrs X a consolatory payment of £250 for the gross inconvenience she had suffered, and a further consolatory payment of £100 for severe distress.
Medical Services also took steps to improve their handling of complaints, including implementing a revised complaints procedure focusing on effective management and remedial action, depending on the nature of the complaint, the doctor’s previous history, and the outcome of quality monitoring of the doctor’s work. BA also introduced arrangements to monitor Medical Services’ performance in handling complaints.
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Full text
10.1 Mrs X complained about the conduct of an examining medical practitioner (whom I refer to as doctor A) who examined her on behalf of the Benefits Agency (BA), an executive agency of the then Department of Social Security (DSS), in connection with her renewal claim for disability living allowance (DLA). She said that doctor A had displayed an aggressive and inappropriate manner and that his examination had left her feeling angry, degraded and humiliated.
10.2 My investigation of the complaint began in October 2000, after the Ombudsman had received comments from the Chief Executive of BA. I have not put into this report every detail investigated by the Ombudsman’s staff, but I am satisfied that no matter of significance has been overlooked.
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Background
10.3 DLA is a non-contributory cash benefit for those who need help with personal care or mobility. It has two components, care and mobility, which may be payable at various rates, depending on the extent of the claimant’s care needs and mobility restrictions. Claims to DLA are dealt with by BA’s regional disability benefit centres. At the time relevant to Mrs X’s complaint, entitlement to DLA was decided by adjudication officers (now called decision-makers). The determination was based on the claimant’s self-assessment of her care needs and mobility restrictions. When considering a claimant’s entitlement to DLA, the adjudication officer could also obtain evidence from the claimant’s general practitioner (GP) or consultant and could require the claimant to undergo a medical assessment by an examining medical practitioner. In order to make such a report, the examining medical practitioner examines the claimant and completes a form DLA 140 (DLA Medical Report) which contains a section (known as a ‘statement’) in which the claimant’s needs are described in her own words (or those of her carer). After the examination the claimant reads the statement or, alternatively, the doctor may read the statement to the claimant. The claimant is then asked to sign the statement to indicate her agreement that the information in it is correct.
10.4 If a claimant was dissatisfied with an adjudication officer’s decision, she could ask for a review by another such officer, provided that the request was made within three months of the notification of the original decision. If the applicant was still not satisfied with the decision on a medical matter, she could appeal to a disability appeal tribunal. Appeals are administered by the Appeals Service. If a claimant is dissatisfied with the decision of the tribunal, there is a further right of appeal to the Social Security Commissioners, but only with leave and only if the reason for objecting to the decision involves a point of law. If a Social Security Commissioner directs that an appeal should be re-heard by a second tribunal, the Appeals Service arrange a further hearing.
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10.5 Since September 1998, BA have contracted the SEMA Group to provide a national medical service on their behalf and in support of a number of benefits (including DLA) for sick and disabled people. SEMA are responsible for carrying out medical examinations of claimants and providing reports to BA. The service is provided by Medical Services, who are an integrated medical and administrative division of the SEMA Group. The service is organised on a geographical basis and is delivered through 12 medical service centres and numerous medical examination centres. The medical service centres carry out administrative work, initial scrutiny of cases, and medical quality co-ordination. Medical services centres comprise full-time doctors (directly employed by Medical Services) and administrative staff. In addition, fee-paid contracted doctors (self-employed) carry out examinations either at examination centres or in the claimant’s own home. The SEMA Group engaged sub-contractors Nestor Disability Analysts (Nestor), whose role includes providing the fee-paid doctors. Nestor are responsible for the initial aspects of recruitment, payment, and contract management of examining medical practitioners on behalf of Medical Services. Medical Services are responsible for the training and ongoing support of examining medical practitioners, and for dealing with complaints about the standard of service provided by examining medical practitioners, including a doctor’s manner. Each medical service centre has a nominated complaints officer who is responsible for identifying the issues raised by a complaint and deciding an appropriate course of action. Medical Services’ complaints procedure guide (see paragraph 10.6) advises staff that there are four categories of complaints requiring investigation; serious complaints (concerning, for example, sexual assault, theft or fraud), dealt with by a serious complaints investigation team; complex complaints that require investigation; complaints that require investigation but are more straightforward; and complaints that require minimal enquiry. The complaints officer is responsible for arranging an appropriate investigation of a complaint and issuing a full response to the complainant. They are expected to consult a nominated medical adviser or the Medical Team Leader as appropriate when dealing with a complaint.
10.6 Medical Services have produced a complaints procedures guide, the aims of which are said to be “to deal with complaints fairly” and “to provide complainants who are dissatisfied with the way we are providing our services, with an effective method of addressing their complaints”. The guidance document goes on to say that Medical Services regard complaints as important “because they provide an opportunity to regain the goodwill of a dissatisfied claimant, and enable (a) early identification of trends, training needs and potential problem areas, and (b) action to be taken to prevent problems escalating into more serious disputes”.
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10.7 Medical Services have also produced a guidance document entitled “Guidance for Examining Medical Practitioners”. It includes a section entitled “good assessment techniques”. That includes advice to doctors that they should make a conscious effort to develop a good rapport with claimants; explain what they are about to do throughout the assessment; remember the importance of their body language; be patient, and help claimants give as complete an account as possible of their needs by using good listening techniques; and keep an open mind while obtaining the statement (paragraph 10.3), allowing the claimant to express their needs, etc. as fully as possible.
10.8 BA’s Improving Medical Provision and Contracting Team (known as IMPACT) are responsible for BA’s liaison with SEMA and for monitoring their performance against agreed service levels and service standards.
10.9 On 12 April 2000 the House of Commons Select Committee on Social Security reported on their inquiries into the performance of the contracted out Medical Services. The report (Reference HC 183) made a number of recommendations, including some relating to SEMA’s system for handling complaints. The report noted that SEMA and DSS had recognised that the system for handling complaints was not performing as well as it should and that SEMA were currently reviewing it.
10.10 Under DSS’s non-statutory financial redress scheme, the principles of which the Ombudsman and his predecessors have accepted, the department and its agencies may make an ex gratia consolatory payment where departmental maladministration has resulted in gross inconvenience, gross embarrassment or severe distress.
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Jurisdiction
10.11 The Ombudsman can investigate the administrative actions of staff acting on behalf of, even though not directly employed by, BA, as in this case. The decisions of adjudication officers on entitlement to social security benefits and the decisions of the appellate bodies, such as disability appeal tribunals, are outside the Ombudsman’s jurisdiction. They are referred to in this report only to place in context the administrative handling of Mrs X’s case. The Ombudsman can investigate aspects of the conduct of a medical examination, for example alleged rudeness and inappropriate or unreasonable behaviour. However, the Ombudsman is generally debarred from investigating a matter for which a right of appeal to an independent appeal tribunal exists, which includes decisions or assessments as regards eligibility for benefit made by examining medical practitioners. That bar becomes absolute where, as in Mrs X’s case, that right of appeal has been exercised.
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Investigation
10.12 1994 to 1998 Mrs X was awarded the higher rate mobility component of DLA from 4 October 1994 to 18 April 1996, and the middle rate care component of DLA from 18 January 1995 to 18 April 1996. In November 1995 Mrs X renewed her claim and, after review and appeal, she was awarded the higher rate mobility component and lower rate care component for the period 19 April 1996 to 18 April 1999.
10.13 On 28 October 1998 BA received a further renewal claim from Mrs X. An adjudication officer decided that the information she had provided and the additional evidence from Mrs X’s GP did not support her continuing entitlement to either component of DLA. On 8 December BA told Mrs X that. She asked BA to review their decision. A different adjudication officer reconsidered all the evidence and decided to seek a fresh medical report on Mrs X. The case was referred to the medical services centre, who referred the file to doctor A to carry out a medical examination.
10.14 1999 to 2000 On 15 March 1999 doctor A visited Mrs X at her home and carried out a medical examination in the presence of Mrs X’s husband. Doctor A completed a standard report form, including a statement recording Mrs X’s needs in her own words, which Mrs X signed, and the clinical and other findings of the medical examination. In her subsequent written complaint Mrs X said that doctor A’s conduct in carrying out the medical examination was inappropriate in the following ways:
a. he displayed an aggressive and arrogant manner throughout the examination;
b. he waved his hands dismissively when she tried to tell him about a medical procedure she had undergone earlier in the year, and which Mrs X felt was relevant to her claim;
c. he used coarse language when asking how often she soiled her incontinence pads;
d. without warning he pulled the back of her trousers and looked down to see if she was wearing an incontinence pad;
e. he insisted that Mrs X should sign the statement on form DLA 140 (paragraph 10.3) despite her telling him that she did not agree with what he had written; and
f. the examination left her feeling humiliated, degraded and angry.
10.15 After considering doctor A’s medical report of the examination, the second adjudication officer reviewed the decision on Mrs X’s renewal claim, but did not change it. On 14 April BA told Mrs X that and she appealed against that decision. In June Mrs X wrote to a Member of the Scottish Parliament (MSP) asking him to refer her complaint to the Ombudsman. On 25 June the MSP wrote to the local health board asking them to investigate Mrs X’s complaint. However, it was not until November 1999 that the complaint arrived at BA’s Disability Benefits Unit at Blackpool, and they referred it to Medical Services’ client liaison group at Preston (Preston) asking them to investigate the complaint. On 22 December Preston referred the complaint to the complaints officer at the medical services centre. Meanwhile, on 12 October the appeal tribunal upheld BA’s decision not to renew Mrs X’s award of DLA.
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10.16 The complaints officer at the medical services centre contacted doctor A asking him for his comments on the complaint. On 29 December the complaints officer wrote to Preston outlining doctor A’s comments on Mrs X’s complaint. On 5 January 2000 Preston wrote to the MSP expressing regret that Mrs X felt she had cause to complain about her medical examination. Preston said that Medical Services had asked doctor A for his comments on the complaint and he had said that he had carried out a full and thorough examination covering all aspects of Mrs X’s disabilities. He said that he was dismayed by the content of Mrs X’s letter and was not in the habit of using coarse language. The letter said that doctor A was most professional in dealing with claimants, especially female claimants suffering from Mrs X’s stated disabilities. They said that during such medical examinations doctor A had to ask questions which could be embarrassing to a claimant, but he took care to remain compassionate and professional so as to minimise any problem that the claimant might have. Preston concluded the letter as follows: “I would like to confirm that it is never the intention of Medical Services to make claimants feel upset or degraded. Medical Services feel that it is important to offer a professional, fair and courteous service to claimants who undergo medical examinations in connection with a claim to benefit. I would like to apologise for any inadvertent upset that may have been caused to Mrs X on this occasion and hope that any future dealings with our service will not give her cause to complain”.
10.17 On 3 March a welfare rights officer, acting on behalf of Mrs X, sought leave to appeal to the Social Security Commissioners against the tribunal’s decision of 12 October 1999. Leave to appeal was granted; and the welfare rights officer was told of that decision. Following a further letter from the MSP, Preston wrote to him again on 14 March 2000. They said that Mrs X’s complaint had been taken seriously and an investigation had been carried out. They apologised for “any upset that may have been caused to Mrs X on this occasion” and said that: “Doctor A was a fully trained and an experienced examining medical practitioner who carried out numerous examinations on behalf of Medical Services”. They said that each medical services centre had a medical team leader who was responsible for ensuring that the examining doctors followed the professional standards laid down by Medical Services. They went on to say that medical examinations undertaken in connection with DLA were regularly looked at to ensure that they were performed to a satisfactory standard and that the resulting reports were completed in the correct manner. They added that during this quality monitoring process doctor A’s reports had always been completed to the standard expected.
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10.18 Mrs X took up her complaint with the Member. On 3 April the Member wrote to Preston asking them to send him the results of their investigation into Mrs X’s complaint. Preston did not reply so, on 22 June, the Member wrote again, referring to his earlier letter. On 31 July Preston wrote to the Member, enclosing a copy of the letter that had been sent to the MSP on 14 March. They apologised for overlooking the Member’s original letter.
10.19 Mrs X asked the Member to refer her complaint to the Ombudsman, which the Member did on 4 August.
10.20 During the investigation one of the Ombudsman’s staff asked BA if there had been any other complaints about doctor A’s conduct, and if there had, whether those had been investigated by Medical Services. He also asked how the number of complaints about doctor A compared with the level of complaints against other doctors who carried out medical examinations for SEMA.
10.21 BA informed the Ombudsman’s office that, in the period 1 September 1998 to 19 October 2000, there had been a total of 54 complaints about doctor A, 51 of which had been about his manner during medical examinations, specifically that he was abrupt and did not listen properly to claimants. A total of 54 complaints represented 1.6% of the 3000 or so examinations which doctor A had carried out in that period. That compared with an average level of complaints of 0.5% expressed against the total volume of work carried out by all Medical Services’ doctors.
10.22 BA told the Ombudsman’s staff that the medical services team leader (whom I refer to as doctor L) had reviewed the complaints file in each case where there had been a complaint against doctor A, and that he was satisfied with the contents of all the medical reports. None of the complaints had therefore been upheld. However, as a result of the level of complaints, doctor L had reconsidered each complaint and had had two formal meetings with doctor A. Following those meetings the matter of doctor A’s performance had been referred to SEMA’s human resources section, and doctor A had been given clarification concerning what was expected of him. BA said that doctor A’s work was being monitored.
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Interview with Mrs X
10.23 Two of the Ombudsman’s staff interviewed Mrs X about her complaint on 7 December 2000. She repeated what she had said in her written complaint (paragraph 10.14), and added that doctor A’s manner had been off-putting from the moment he had entered her house. She said that she had never been treated in such a rude manner by a doctor. She said that doctor A had became annoyed with her when she was unable to answer his questions quickly enough, and he had not allowed her the time to explain anything in the way she had wanted. She said that she found his constant arm waving to be aggressive, and she felt that his manner was unacceptable. She said that doctor A had not been compassionate or understanding towards her and that she had felt rushed, and consequently she felt that she had not been given an adequate opportunity to put her case across fully. For example, she said that doctor A had made it clear that he did not wish to hear about her recent surgery or the fact that she was taking anti-emetic medication.
10.24 Mrs X said that at the end of the examination doctor A had given her the statement in form DLA 140 to sign. She said that she had started to read the first page; but he had waved his hands at her, and insisted that she sign it. She had told him that the first page was incorrect, but he had leaned across her, turned over the form, and told her to sign it. She said that she had signed the form without reading it further, in order to get doctor A to leave her house as quickly as possible.
10.25 Mrs X added that her husband, who had been present throughout her examination, had become increasingly annoyed at doctor A’s manner as the examination had progressed, and that on two occasions she had motioned to him to calm down. Mrs X said she had expected doctor A to treat her “like a person – a person with human feelings” but he had fallen a long way short of meeting that expectation.
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Interview with doctor A
10.26 Two of the Ombudsman’s staff interviewed doctor A on 8 December. He explained the background to his work for SEMA and said that he also worked as a geriatrician in a local hospital. The Ombudsman’s staff asked doctor A for his response to the specific points that Mrs X had raised in her complaint. Doctor A said that so much time had elapsed since he had examined Mrs X that he could not remember the examination that clearly. However, he was certain that he had not been aggressive towards her. He acknowledged that the tone of his voice and the way in which he spoke could sometimes come across as aggressive, especially to people who had never heard him speak before. However, he said that that was completely the opposite of his nature. He said that he did not have a local accent, and he therefore needed to pronounce his words clearly in order to be understood from the outset. He said he was an expressive person by nature and, when examining patients, he had a tendency to express himself by using his hands. He said that when examining Mrs X he might, for example, have used his hands to stress the meaning of a question. He categorically denied using coarse language in questioning Mrs X about her use of incontinence pads. He said that if a claimant was not clear what he was referring to when he alluded to that topic, he might ask them if they had ‘soiled themselves’ but there was no need for him to use stronger language.
10.27 He said he did not pull the back of Mrs X’s trousers. He said that he would have asked her if she had any back pain and might have placed his hand on her back in looking into that issue. Doctor A said that he would have asked her to bend from a sitting position and that she had managed to do that by 45 degrees. He said that he had asked Mrs X to put her hand on the site of the pain (the lumbar spine) and to achieve that she would have needed to lower the edge of her trousers so that he could see the area in question. He said that he would not have needed to do that in order to establish whether or not she was wearing an incontinence pad; in any case he was sure that she was not wearing a pad from looking at her trousers and from his neurological examination. Doctor A said that during that part of the examination a doctor would need to assess the sensation in both lower limbs and, at that stage, his hand would have felt the pad if she was wearing one. Doctor A said that he could also tell whether a claimant was wearing a pad when he examined their hip joints, and that when a claimant bends her back by 45 degrees he would be able to see the outline of the pad.
10.28 Doctor A denied asking Mrs X to read the statement. He said that he had read the statement back to her and she had signed it after that. Doctor A said that he had not forced her to sign anything at all. He questioned what part of the statement was not correct as, in his view, the statement was in Mrs X’s favour. Doctor A pointed out that, despite Mrs X’s complaint that he had not been prepared to listen to what she had wanted to say about her recent surgery or the anti-emetic medication she was taking, he had clearly mentioned both those matters in his report on form DLA 140. However, doctor A said that a claimant’s medical history bore little or no relevance to her care and mobility needs, which were his main concern.
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10.29 Doctor A said that he could not understand why Mrs X had said that she felt humiliated and degraded. He thought she must have been alluding to his request to see what kind of incontinence pad she was using. His request had been based on her initial assessment that she used 40 pads a week and yet she had no pads at home during the time of his visit. His purpose in asking to see the type of pad she was using was to establish whether it was the type used for urinary or bowel incontinence. Mrs X had said that she was doubly incontinent but there was no pathological reason for that.
10.30 Doctor A said he did not know why so many claimants had complained about the manner in which he conducted medical examinations. However, he noted that the complaints were mainly from claimants living in one part of the country, whereas claimants living in another part of the country rarely complained about him. He had tried to get to the bottom of why there had been so many complaints, and he said that he had asked management whether the level of complaints about his conduct differed from the level of complaints about other doctors. However, he had not been given any information about that. Doctor A said that he had wanted to modify his approach, maybe by moderating his voice, which he acknowledged could be loud, so that the level of complaints against him would reduce. He had sought advice from doctor L and from SEMA’s medical director when she was visiting the medical services centre. The chief medical adviser had suggested that he carry out a supervised examination with another doctor, who could look for any potential problem areas. Doctor A said that about two or three months earlier he had asked for a meeting with doctor L during which they had discussed the complaints. He said that doctor L had presented him with about 24 complaints that had been made against him and that they discussed those cases. However, he had not been given any advice at that time. The accompanied visit had taken place on 9 November 2000 and he had been accompanied by the Medical Services’ training officer (doctor F). Doctor A said that he had not been given any feedback on his performance during that visit until less than an hour before his interview with the Ombudsman’s staff, when he said he was given a report of the supervised visit and a ‘feedback plan’, both of which had been written by doctor F. He said that doctor F had not commented about his performance during the supervised visit, which he thought had gone very well. Given that, he was surprised that SEMA had waited four weeks before giving him feedback on his performance. Furthermore, he said that doctor L had now told him that he would not be asked to undertake any further DLA medical examinations on his own until matters had been resolved.
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10.31 Doctor A showed the Ombudsman’s staff the documents that he had been given about his performance on the supervised visit. The report, which was signed by doctor F and dated 10 November 2000, said the following:
“(i) Doctor A’s introduction was very brief. He failed to explain to the customer that the DLA 140 statement to be completed covered all areas of mobility and care needs. Many customers claim mainly mobility problems and are unaware that the decision-maker may request details of care needs to fully assess the claim. Questions asked particularly re: continence may appear completely inappropriate to them if this goes unexplained.
(ii) Doctor A’s manner of questioning tends to be very direct, rapid and loud, often giving little alternative than a yes/no answer. I feel to some customers this could be confrontational.
(iii) I also felt that doctor A failed to explain to the customer exactly what he was about to do at the time of examination and again feel that this could cause some distress to sensitive individuals.”
The Feedback Plan said the following:
“(i) I suggest that doctor A is invited to a short retraining discussion addressing the importance of adequate explanation to clients of the format of the interview/statement and the reasons for requesting the information. It should also be reiterated to him that this also helps to put clients at their ease.
(ii) Further reinforcement is also required in the area of type and manner of questioning. It has to be emphasised to him that clients have a right to the time to explain fully their difficulties and any help required to overcome these.
(iii) I feel that doctor A should be further discouraged from expressing either verbally or facially that he feels the claimed disability is unreasonable. This is not his brief and only leads to confrontational situations.
(iv) As in (i), he should be reminded that an explanation of any physical examination required is only courteous and also leads to greater co-operation.”
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Interview with doctor L
10.32 The Ombudsman’s staff then interviewed doctor L. He explained that as medical services team leader for the medical services centre he was in charge of the full-time doctors employed by SEMA and responsible for the sessional doctors whom SEMA contracted to carry out medical examinations on BA’s behalf. In that capacity he was responsible for sessional doctors’ conduct when carrying out examinations and for investigating complaints against them. Doctor L said that his main role was quality monitoring and assurance to ensure that Medical Services delivered a quality service to BA under the terms of the contract. He said that that was accomplished by checking the quality of reports and also initiating training and re-training.
10.33 Doctor L explained that, after a formal four-day training course, doctors carrying out medical examinations initially carried out those examinations under the close supervision of a full-time doctor. Subsequently doctors’ performance, including the quality of their written reports, was monitored under a rolling programme. Doctor L said that doctor A’s reports had been submitted promptly, and all but a few of them had been up to the required standard.
10.34 Doctor L said that when Medical Services received a complaint about a particular doctor, a decision was first made about the seriousness of the complaint and whether it should be referred to the serious complaints investigation team. If that was not necessary the complaints officer then decided whether or not to proceed with a full investigation. If a full investigation was deemed necessary the complaints officer sent a copy of the complaint to the doctor concerned, asking for his or her comments. The complaints officer should liaise with him as necessary and keep him informed about developments, including when a response had been received from the doctor. The complaints officer did not contact the complainant. After considering the doctor’s comments, and consulting doctor L as necessary, the complaints officer wrote to the complainant giving them a full written response. Doctor L said that none of the complaints against doctor A had been considered as a serious complaint as it was usually his manner that was the subject of a complaint.
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10.35 Doctor L said that complaints about a doctor’s manner or lack of inter-personal skills were difficult to deal with, since they invariably amounted to one person’s word against another’s. Medical Services had to come down one way or another and, if they considered that a doctor generally carried out his examinations satisfactorily, they would usually side with the doctor. They would offer apologies for any distress caused to the complainant if they considered that to be justified. If a complaint seemed well founded, the doctor in question would be called in and asked to speak to his or her mentor (another senior doctor), and perhaps be given remedial training. Doctor L said that none of the complaints received over the previous year in the medical services centre had been sufficiently well founded to justify that course of action.
10.36 Doctor L explained that Mrs X’s complaint had been treated in the same way as other complaints. The complaints officer had referred the complaint to doctor A for his comments, and she felt that his response had been reasonable. She had not interviewed Mrs X nor spoken to her.
10.37 Referring to the other complaints against doctor A, the Ombudsman’s staff asked doctor L if, when considering Mrs X’s complaint, Medical Services had taken into account the fact that hers was only one of a considerable number of complaints made about doctor A. They also asked whether, in considering complaints about an individual doctor, they looked for any emerging pattern to the complaints. Doctor L replied that Medical Services would look for a read-across to other complaints that had been made about the same doctor. For this reason there was some concern over doctor A since the complaints against him had indicated a pattern with regard to his manner and approach. The other complaints made against doctor A were similar to those made by Mrs X, although there had never been any complaint about him using coarse language. For example, other complainants had used words or phrases such as “Doctor A’s brusque approach”, “his manner of examination”, “his appalling manner to people”, “rude and loud”, “abrupt and arrogant”, “aggressive” and “manner not very nice”.
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10.38 When the Ombudsman’s staff observed that Medical Services had not taken any substantive action in relation to the complaints against doctor A until after the Ombudsman had taken up Mrs X’s complaint, doctor L said that he now considered that he should have taken action earlier, but the action he had taken had not been precipitated by the Ombudsman’s investigation. He said that he had formally interviewed doctor A (at doctor L’s request) on 25 August to discuss his concern at the high number of complaints being received about his manner, and to ask for his comments on those complaints. Following that discussion, he had informed doctor A that he could continue his work, but Medical Services would be closely monitoring his performance. Doctor L said that after consulting Medical Services’ human resources section he had held a further meeting with doctor A on 11 September 2000. Doctor A continued to deny that there was any substance to the complaints about his manner and said that he saw little wrong in his approach to claimants. Doctor L said after that meeting he had written to Nestor expressing his concern about the high number of complaints that were being made against doctor A. The letter asked Nestor to make doctor A aware of those concerns and said that further high levels of complaint might mean that Medical Services would be unable to continue using his services.
10.39 Doctor L said that it was clear that a pattern of complaints was developing, and by autumn 2000 he was concerned about that, as he thought that he had not reacted quickly enough to that emerging pattern. Doctor L said it had been necessary to determine whether doctor A was consistently loud and aggressive in his approach and, in view of that, he had spoken to the medical director and had decided to ask doctor F to accompany doctor A on a medical examination. That supervised visit took place in November 2000. Doctor L said that that action had not been taken solely because of the impending visit by the Ombudsman’s staff, but because he had been concerned about the matter for some time.
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10.40 Doctor L told the Ombudsman’s staff that on the afternoon before their visit he had received doctor F’s written comments and feedback on doctor A’s performance during the supervised visit. He had subsequently given doctor A a copy of the report and the feedback plan. Doctor L said that it had not been possible to give him those comments sooner because doctor F had needed to check that she had followed the correct procedures and to adapt her report accordingly.
BA’s response to the complaint
10.41 In her comments to the Ombudsman the Chief Executive said that IMPACT had contacted SEMA in order to provide a point-by-point reply to Mrs X’s complaints. That was included as an Annex to the Chief Executive’s letter. In response to Mrs X’s request for an apology for the embarrassment she had been caused by doctor A’s examination, Medical Services acknowledged that there was a clear difference of opinion between how Mrs X and doctor A perceived the examination. They said that although they did not accept that doctor A was intentionally aggressive or rude, there was no dispute that Mrs X was upset by the examination and for that Medical Services offered their apologies.
Recent developments
10.42 On 10 October 2000 a Social Security Commissioner set aside the tribunal decision of 12 October 1999. A fresh tribunal hearing on 15 February 2001 upheld Mrs X’s appeal and awarded her both components of DLA at the higher rate.
10.43 On 16 February 2001 doctor L informed the Ombudsman’s staff that doctor A had been given further supervised training sessions on 14 and 18 December 2000 and since then Medical Services had received five complaints about doctor A, one of which had been withdrawn and three of which were in respect of examinations carried out before the supervised sessions. Doctor L said that those complaints would be thoroughly investigated. He went on to say that as a result of the training sessions, and the earlier guidance which Medical Services had given doctor A, the level of complaints against him had dropped. There had been no further complaints from DLA claimants examined by doctor A. Doctor L added that Medical Services had also significantly reduced the number of medical examinations that doctor A undertook and he had recently expressed greater work satisfaction following that change. Doctor L also said that he would be monitoring doctor A’s performance in the coming months. He proposed to undertake a quarterly review of any complaints made against doctor A during the first three months of 2001. If during that three-month period doctor A performed satisfactorily with no substantiated complaints, they would continue to use his services with a further three-month review. Doctor L said that he had spoken to doctor A and informed him of that action plan and they had agreed to a further interview in early April 2001 to discuss the three-month assessment.
On 16 March 2001 BA paid Mrs X arrears of DLA.
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Findings
10.44 The assessment of Mrs X’s care and mobility needs and her entitlement to disability living allowance are not matters for the Ombudsman. The findings of the examining medical practitioners and the benefit decisions consequent on those findings are appealable matters. Mrs X has taken the matter through the proper appellate procedure; and the Ombudsman cannot comment on those decisions (paragraph 10.11).
10.45 However, it is clear that Mrs X remains extremely dissatisfied with the conduct and manner of doctor A during his examination of her on 15 March 1999. I will not rehearse all the details of her complaint, as they are fully set out in paragraph 10.14.
10.46 What then of the handling of Mrs X’s complaint, and was it justified? My investigation has shown that when Medical Services first received her complaint in December 1999 they dealt with it in accordance with their normal procedure (paragraph 10.6). Having correctly established that the complaint did not merit the attention of the serious complaints investigation team, they asked doctor A for his comments on the complaint. When doctor A rejected Mrs X’s complaints about his manner, Medical Services effectively decided that no further investigation on their part was necessary. They subsequently replied to that effect to the MSP, offering their apologies for any inadvertent upset that may have been caused to Mrs X (paragraph 10.16). As I go on to explain, I found that although that action was in accordance with the established complaints procedure, the procedure itself proved inadequate to deal effectively with Mrs X’s complaint. Moreover, the procedure failed to achieve the admirable aims and objectives set out in Medical Services’ guidance document on the handling of complaints. The way in which Medical Services dealt with Mrs X’s complaint led me to the view that in this instance they might have lost sight of those aims and objectives.
10.47 In view of the high level of similar complaints that Medical Services had received about doctor A’s conduct and manner, their response to Mrs X’s complaint should not have been considered in isolation from their responses to the other complaints. If a complaint concerning an individual doctor is a one-off occurrence, or only a few complaints of a similar nature have been received about the same doctor, it might be appropriate to consider such a complaint in isolation. But if a clear pattern of complaints has already been established within a relatively short space of time, for example if there is a trend in the type of complaint being made, it is in my view no longer appropriate to consider any new complaint against that same doctor in isolation from the earlier complaints. That view seems to be shared by Medical Services, as their guidance clearly refers to the importance of complaints because “they enable the early identification of trends, training needs and potential problem areas”. Clearly the number of complaints about doctor A represented evidence of a trend and a potential problem, which I am pleased to note has now been addressed, albeit belatedly. Unfortunately, that did little to help Mrs X.
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10.48 By the time BA received Mrs X’s complaint in November 1999 (paragraph 10.15) Medical Services had already received 25 complaints against doctor A. By 14 March 2000 – the date of their second letter to the MSP, indicating that doctor A’s work was of a satisfactory standard (paragraph 10.17) – that number had risen to 33. Such a large number of complaints should have alerted Medical Services to the fact that they faced an escalating problem. Instead, Medical Services continued to accept doctor A’s denial of the complaints about his conduct and manner, and to place limited credence on what the complainants were saying. Given the statistical information available to Medical Services at the time they received Mrs X’s complaint they should have investigated her case very thoroughly. At that stage they should have considered the wider issues of whether closer supervision and monitoring of doctor A’s performance were required, given that it was possible that he might not be taking full cognisance of the provisions outlined in the Guidance for Examining Practitioners (paragraph 10.7).
10.49 In fact Medical Services took no substantive action over doctor A until after the Ombudsman became involved in Mrs X’s case in August 2000. I find that of particular concern. When they arranged a supervised visit in November 2000 the training doctor (doctor F) observing doctor A’s performance identified the very same shortcomings in his conduct and manner that Mrs X and others had cited in their complaints (paragraph 10.31).
10.50 The outcome of the supervised visit, together with the substantial number of other similar complaints about doctor A, lead me to conclude that on the balance of probabilities Mrs X’s complaint about his conduct and manner was justified. That is not to say that doctor A was intentionally rude to Mrs X or that he was even aware that his manner toward her was likely to cause offence. I think it unlikely that he was.
10.51 Having come to the conclusion that Mrs X’s complaint was justified, I have been unable to make any finding on two of Mrs X’s specific complaints; namely whether doctor A used inappropriate language during his examination or whether, without warning, he pulled the back of her trousers and looked down to see if she was wearing an incontinence pad. The accounts of Mrs X and doctor A are irreconcilable in respect of those two areas of her complaint.
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10.52 I criticise Medical Services for:
a. failing to recognise that a pattern of complaints against doctor A had developed to the point where it was no longer appropriate to treat every new complaint against him as a ‘one-off’;
b. failing to take timeous action with regard to doctor A’s performance despite receiving many complaints about his manner; and
c. failing to investigate Mrs X’s complaint with sufficient rigour.
10.53 In view of my findings I asked the Chief Executive what assurance she could give me that Medical Services would in the future identify situations where a pattern of complaints had developed that might give rise to concern over the performance of an individual doctor; and whether that pattern would be fully taken into account when investigating further complaints about that doctor and in any remedial action that might be deemed necessary. I also asked the Chief Executive if any further review of Medical Services’ complaints procedure would consider whether the procedure would be enhanced by more direct contact with the complainant when the complaints officer deemed that appropriate.
10.54 In reply, the Chief Executive said that Medical Services had now developed and implemented a medical skills database comprising an up-to-date record for each individual doctor, detailing the training which he or she had received, the outcome of medical quality monitoring and information about the number and nature of complaints received about each doctor. The Chief Executive added that Medical Services had implemented a revised complaints procedure in March 2001 which focused on effective and consistent management action following complaints against an individual doctor. In any 12 month period, if more than three complaints of a similar nature were received about a doctor, the medical services team leader now reviewed the complaints record and took appropriate action. All Medical Services’ customer relations managers, administrative and medical managers, had been trained in the revised procedures. Medical team leaders had been given guidance about appropriate remedial action, depending on the nature of the complaint, the doctor’s previous complaint history, and the outcome of medical quality monitoring of the doctor’s work. Complaints involving serious allegations against a doctor were investigated by Medical Services’ serious complaints investigation team, and would almost always involve an interview with the customer or their representative.
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10.55 As indicated earlier in my report (paragraph 10.8) the performance of Medical Services is monitored by BA’s IMPACT team. During my investigation the Ombudsman’s staff asked BA if IMPACT monitored complaints made against individual doctors. In reply BA told me that the terms of their contract with SEMA did not require Medical Services to provide IMPACT with details of complaints against individual doctors. IMPACT would not be aware, therefore, if any of the doctors retained by SEMA were subject to an unusually large number of complaints. Bearing in mind that BA are responsible for the performance of doctors carrying out medical examinations on their behalf, I asked the Chief Executive whether there were any plans for BA to monitor Medical Services’ performance with regard to complaint handling. In reply the Chief Executive said that IMPACT currently depended on information resulting from complaints against doctors received by BA, which were investigated by IMPACT’s official correspondence team. Any issues of concern regarding those complaints or their handling were discussed with Medical Services at regular intervals. IMPACT recognised, however, the need for regular reports from Medical Services about doctors who had been the subject of three complaints of a similar nature within a 12-month period, and would implement a process for doing so. Those reports would enable IMPACT to monitor whether Medical Services were taking appropriate action in response to complaints. I welcome that development.
10.56 That leaves one important issue. Once the supervised visit had taken place it was desirable that Medical Services should give doctor A feedback on his performance as soon as possible so that he had the opportunity to adapt his approach to take account of any comments that doctor F might have had about his performance. However, doctor A said that he did not receive any feedback until he was given a copy of doctor F’s written comments just before his interview with the Ombudsman’s staff on 7 December. Given that that feedback was critical of doctor A’s performance in a number of areas I find it surprising that Medical Services delayed giving him formal feedback until four weeks after the supervised visit. However, I welcome the monitoring arrangements that Medical Services have now put in hand with regard to doctor A’s performance (paragraph 10.43).
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10.57 I noted that BA had not considered making a consolatory payment to Mrs X in recognition of the gross inconvenience and severe distress that she clearly suffered. I felt that such a payment was justified under the terms of DSS’s financial redress scheme (paragraph 10.10). It was clear to the Ombudsman’s staff when they interviewed Mrs X that she had suffered, and continued to suffer, considerable distress as a result of doctor A’s conduct and manner during her medical examination. In the circumstances I suggested to the Chief Executive that she might consider sending a full apology to Mrs X for the way she had been treated during her medical examination and the manner in which her subsequent complaint had been handled. I further asked the Chief Executive if BA would consider awarding consolatory payments to Mrs X for gross inconvenience and severe distress. In reply BA agreed to make a consolatory payment to Mrs X of £250 in recognition of the gross inconvenience she had suffered and a further £100 for severe distress. They also said that they would be prepared to consider increasing the consolatory payment for severe distress if Mrs X provided objective evidence that her physical or mental health had deteriorated as a result of the handling of her case. On 19 June 2001 the Chief Executive wrote to Mrs X acknowledging that she had not always received the standard of service that she was entitled to expect. The Chief Executive offered her personal apologies for that.
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10.58 Medical Services’ response to Mrs X’s complaint against doctor A was wholly inadequate. Given the pattern of earlier complaints against him, they should have realised that it was not appropriate to treat Mrs X’s complaint as a ‘one-off’. Moreover they should also have recognised sooner that they needed to take action over doctor A’s performance. I consider that BA’s apologies to Mrs X, their decision to award her consolatory payments totalling £350 for severe distress and gross inconvenience, the action taken by Medical Services to monitor doctor A’s performance, the measures which BA have set in place to monitor Medical Services’ performance with regard to complaint handling, and the measures which Medical Services have taken to ensure that effective action is taken following complaints about an individual doctor, are a satisfactory outcome to a justified complaint.
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