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GPs held to 'unreasonable' standards win appeal case against ombudsman

Two GPs have won an appeal against the health service ombudsman, after it was ruled that an investigation into the death of a patient was ‘unlawful’.

Dr Katherine Miller and Dr Mark Howarth, GPs in Chichester, were investigated by the former Parliamentary and Health Service Ombudsman Dame Julie Mellor over the death of a patient in June 2012.

William Pollard, who was 76-years-old, died of a burst abscess after Dr Howarth initially diagnosed him with a urinary tract infection and prescribed antibiotics.

When his condition didn’t improve after two days the patient’s wife consulted Dr Miller who recommended the antibiotics continue, but Mr Pollard died another two days later. 

Following a complaint from Mrs Pollard, the ombudsman ruled that her husband’s care ‘fell so far below the applicable standard as to be a service failure’, adding that if he had received appropriate care his death ‘would probably have been avoided’.

However, the Court of Appeal found that the ombudsman standard for judging the quality of care was ‘incoherent’ and quashed its original finding in this case, including the recommendation that the practice should pay £15,000 in compensation and apologise for the failings.

Sir Ernest Ryder, senior president of tribunals, told the Court of Appeal that the ombudsman took advice from an expert in colorectal surgery to determine the quality of care, which he said ‘was not an obviously relevant or appropriate expert to advise upon the appropriate practice of a GP’.

He said: ‘The standard chosen by the ombudsman is beguilingly simple but incoherent. It cannot provide clarity or consistency of application to the facts of different cases.'

He added: ‘It runs the risk of being a lottery dependent on the professional opinion of the advisor that is chosen. It is unreasonable and irrational and accordingly, unlawful.’

Dr Michael Devlin, MDU head of professional standards and liaison, said the judgment would have ‘positive implications’ for GPs in England, ensuring that 'the processes being followed by the ombudsman are fair and just'.

He said: ‘It is essential for doctors whose complaints are referred to the ombudsman that the standards used to judge the clinical care provided to a patient are appropriate. Doctors should not be held to unreasonably high standards.’

Dr Devlin told Pulse that the MDU expects the ombudsman to 'carefully consider the implications of the judgement'.

He said: 'We anticipate they will engage with us and other stakeholders regarding changes to their procedures that they deem may be necessary.'

The Parliamentary and Health Service Ombudsman confirmed that it 'will be making some changes to our processes and procedures' following the judgement, adding that it is 'currently undertaking work to finalise these changes and will have further details in due course'.

The court ruling comes after the ombudsman advised GPs to apologise to patients when they complain, with a YouGov poll of 2,000 adults revealing that 76% of patients think complaints could be averted if the GP issued an apology.

Readers' comments (18)

  • Not that i wish ill on these 2 GPs, but im pretty sure if it was Dr Mohammed and Dr Patel, a 15k fine and an apology would have been best case scenario.....

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  • Took Early Retirement

    Possibly you are right but maybe this is a step in the right direction. Glad they saw that judgement by a colorectal surgeon was not being "judged by one's peers".

    GMC take note.

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  • Cobblers

    "The Parliamentary and Health Service Ombudsman confirmed that it 'will be making some changes to our processes and procedures' following the judgement, adding that it is 'currently undertaking work to finalise these changes and will have further details in due course'".

    Yada yada.

    Usual BS apology. 'Lessons learnt''Changes made' whilst in truth they think "You were lucky this time"

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  • Cobblers

    On brief investigation I see that Dr Howarth is no longer registered with the GMC and Dr Miller left her Selsey practice of 18 years.

    So they have been casualties of this investigation even though they 'won'.

    Why would ANYONE want to do medicine?

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  • Good on them.

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  • Vinci Ho

    The key point here is the process of how , where and whom these regulatory bodies(in a sense , too many of them and too confusing) had chosen the advices and materials from to set so called ‘standards’ :
    ‘’The standard chosen by the ombudsman is beguilingly simple but incoherent. It cannot provide clarity or consistency of application to the facts of different cases.'’

    While I still believe in the independence of our judiciary , the technicality of the judges , who are not medically trained, relying heavily on the ‘reflections’ from these regulatory bodies potentially open a doorway of miscarriage of justice. The argument on this is simply because these regulatory bodies are not subjected to a check and balance mechanism. Yes , one can say this will , otherwise, create more layers of bureaucracy. But this is about the defence of the integrity and honour of medical professionals who have fundamentally sworn an oath to heal rather than to harm . Any complacency from these regulatory bodies ,in any way , is castatrophic . And indeed, I believe complacency is the word that should be the ‘verdict’ on the ombudsman in this case . The word ‘beguilingly’ also carries a bearing of deception. The damages were clearly done to these doctors, at least , by the perception of some patients .

    ‘’It is dangerous to be right in matters where established men are wrong.’’
    Voltaire

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  • Council of Despair

    where is accountability? why are the GMC not being held personally accountable for the decisions they make like we are.

    why assume all complaints are legitamite and apologise? where is the right to defend onself from a malicious complaint?

    I think it's time doctors take more legal action against individuals at the GMC and patients - this is the only wat to address the current imbalance.

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  • This news is welcomed and particularly noteworthy that drs can now question the opinion of an expert that is not from their field/specialty. However, let's not forget the following parallels:
    1. The expert in Bawa-Garba's case is an ICU doctor.
    2. The patients in both situation died.

    I guess the name Bawa-Garba sounds from another planet ad this made the overwhelming difference.

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  • Is the tide turning against the ‘medical expert witness’?? Anyone who is sitting in judgement against another GP should PROVE that they are seeing at least 18 patients per session for the same the number of sessions the GP they are screwing over, sorry giving evidence against does. So if the gp on ‘trial’ does 9 sessions only current 9 session GPs can be a witness - if you do a few sessions here and there and make the rest up with appraisals and ‘being an expert’ then jog on, you have no right to judge your colleagues.

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  • @Took Early Retirement
    The GMC;
    Those who are patently not fit to practice in judgement of those who almost certainly are.

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