Clinical judgment cases difficult to pursue, says ombudsman

‘Serious concern’ over limited ability to investigate complaints about doctor decisions

The inability of the ombudsman to pursue complaints about health services where the matter relates solely to an issue of clinical judgment is a “serious cause of concern”, Ombudsman and Information Commissioner Peter Tyndall has said.

Publishing his annual report for 2015, Mr Tyndall said his counterparts in the North and elsewhere had the ability to examine such complaints and that his office was an “outlier”.

It was a particular cause of concern to him because of a Supreme Court judgment last year limiting the role of the Medical Council in pursuing such issues.

Most of the complaints that ombudsman offices dealt with concerning clinical judgment did not suggest the doctor’s fitness to practise was in any way impaired, he said.

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“They simply say that on that particular day, in that context, that was the wrong decision.”

He said an ombudsman complaint also did not “single out” doctors, but looked at the treatment of the person.

“It’s not looking to single out individuals for blame, so it’s a different process,” he said.

Mr Tyndall said the Minister for Health had begun a review of the process last year along with the Minister for Public Expenditure and Reform and other parties. The Minister for Health had also indicated he was in favour of having the restriction on the ombudsman removed.

Mr Tyndall said he very much hoped there would be progress on the issue this year.

Oversight

During 2015, the ombudsman’s jurisdiction was extended to allow for independent oversight of private nursing homes.

Mr Tyndall noted he had only been able to accept complaints about such homes from August 24th last. He said the office was really only starting to see such complaints come through but he expected to see “many more” in the years ahead.

The Ombudsman also said his office dealt with many complaints from people who were on local authority housing waiting lists but there was often very little it could do for them because of the national shortage of housing.

“People who have every entitlement to housing are not getting it, simply because it’s not there.”

He said he believed his office would examine housing complaints this year from more of a human rights perspective, as other ombudsman authorities did. It would examine whether people were being denied their right to a home and a family life.

His office intervened last year on behalf of a woman in Kildare who was about to be made homeless with her two children.

There had been a “happy ending” for that family.

“Unfortunately, for many others, we can’t help. I would just add my voice to those who are saying that we desperately need to provide more affordable, rented housing so that the many people who come to my office complaining about their lack of access to housing can have their needs met,” he said.

Mr Tyndall also called for prisons and direct provision centres to be brought within his office’s remit.

Not enough complaints

The Ombudsman said his office also received “significant numbers” of complaints from people aged over 18 doing Leaving Certificate exams. One complaint last year resulted in a student with Asperger syndrome being reassessed to allow him use a reader during his exams after he had initially been refused this assistance.

Mr Tyndall said not enough people were complaining about services provided by government departments and other public bodies and that such complaints could be used to improve the delivery of public services.

Complaints to the Ombudsman rose by 3 per cent last year to 3,641. The most complained about sector was the civil service, with 1,397 complaints. There were 1,006 complaints about local authorities.

The Health Service Executive was the subject of 585 complaints.

“In most cases the delivery of public services goes well,” Mr Tyndall said. “However, if people don’t complain when things go wrong then people will experience the same problems over and over again. When people complain it gives service providers an opportunity to put things right and to stop the same mistakes happening again.”

Last year, the ombudsman conducted its first ‘own initiative’ investigation into hospital complaints systems.

Mr Tyndall noted the low level of complaints about hospitals received by his office. He said people had told him they were afraid to complain because of possible consequences for their treatment, or because they believed complaining would not make a difference.

The Ombudsman’s office is currently working on an online ‘one-stop-shop’ complaints system for the hospital sector.

Some 36 recommendations aimed at improving the hospital complaints system for patients are made in the annual report. All of them were accepted by the HSE, Mr Tyndall said.

Case studies highlighted in the report include the case of a woman who received €28,000 after the Department of Social Protection incorrectly refused her a guardian payment for her granddaughter, saying the child had not been abandoned by her parents.