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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.