Joint Working Manual

Clinical Advice and the role fo the Ombudsman

What's our purpose?

Requests for clinical advice must be clear and focused questions, never general requests for views on care and treatment 

Our focus must always be on the specifics of the alleged fault, never on assessing the general standard of care 

  1. The primary focus of the Ombudsman is to decide if there has been fault.
  2. The Ombudsman’s focus should not generally be on “clinical adjudication”.

We must avoid drifting away from 1, which is defined in our primary legislation and the expectation of Parliament, and towards 2, which is not.

The importance of clinical advice

Investigators will naturally need to consider, from time-to-time, whether they require expert professional advice, in order to make an informed decision about whether there has been fault.  This might be planning advice; it might be legal advice; it may be clinical advice.

Such expert professional advice should be readily available to investigators, providing the request is framed as a set of clear and focused questions.  Ideally, this should include the investigator’s proposed way forward.

PHSO issued a revised clinical standard (see Appendix One) in August 2018 following the findings of a key judicial review, where the Appeal Court found that the standards applied to the clinical advice relied upon in that investigation were unreasonable and irrational and therefore it follows they were also unlawful. The Court specifically 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. There is no yardstick of reasonable or responsible practice but rather a counsel of perfection that can be arbitrary. It runs the risk of being a lottery dependent on the professional opinion of the advisor that is chosen.”

What to avoid

As with any expert professional advice, a request for clinical advice should not constitute a broad or generic request for “your comments on the clinical records” or “views on whether the care was adequate” or “whether the notes suggest there have been failings”.  This is, to some extent, understandable in the face of complicated clinical information and jargon – but is generally indicative of a lack of confidence and/or misunderstanding of the primary focus of the Ombudsman.  It will generally result in unnecessarily lengthy, possibly unfocused, advice which may detract from the investigation and, rather than clarifying the issues, it may not be easy to understand, or at least understand its relevance.  If it is not easily understood, it may present a further problem for the Investigator: what to do with it?  At worst, extracts may simply be “inserted” into the draft decision if they highlight clinical failings, rather than genuinely informing the Investigator’s consideration of the complaint itself.  Before we know it, our investigation is hinged around the clinical advice, rather than our analysis of the complaint.  Our decision becomes a “clinical adjudication”, where one was not needed nor asked for, and the issues raised by the complainant are no longer central.

Getting the best from clinical advice

The right level of expertise is essential: specialist clinical advice must always be provided by a specialist.

We must always ask the organisations involved in any complaint to explain what standards they relied on when taking decisions or carrying out treatment and whether those standards were followed or departed from, and why. Advisors must also always be asked to evidence their advice, referring to established guidelines/frameworks/practises.

The investigator must consider the advice they receive; however, they should treat this as evidence rather than being bound by it.

The investigator must own the decision and use their own words to reflect the advice (avoid “our advisor says that …”).

The investigator is responsible for making sure they understand the advice and, if relied upon, for explaining it in plain English.

Proposed threshold for seeking expert professional advice

One or more of the following may apply to a matter under investigation and the investigator must consider these:

  1. Can the area of practice about which advice may be sought be sufficiently understood by an intelligent lay person with no training in that area of practice to enable them to come to a view about fault?
  2. Can the processes and standards that should be used by someone practicing in that area be sufficiently understood and applied to what happened by an intelligent lay person with no training in that area of practice, to enable them to come to a view about fault.

If the answer to questions 1 or 2 is no, the investigator should take professional advice in order to obtain the view of a professional with expertise in the area of practice on the specific points about which a lay person’s understanding is insufficient.

The Ombudsman's Clinical Standard

  1. When we are considering complaints about clinical care and treatment we consider whether there has been “good clinical care and treatment”. We aim to establish what would have been good clinical care and treatment in the situation complained about and to decide whether the care and treatment complained about fell short of that.
  2. We will seek to establish what constituted good clinical care and treatment on the facts of the case by reference to a range of material, including relevant standards or guidance, the accounts of the complainant and the clinician or organisation complained about and any other relevant records and information.
  3. Relevant standards or guidance we may consider include National Institute for Health and Care Excellence guidance, clinical pathways, professional regulators’ Codes of Practice and guidance, guidance from Royal Colleges, local protocols or policies, and published research including clinical text books or research reported in peer review journal articles.
  4. In deciding whether a standard or guidance was relevant in the situation complained about we will consider factors such as whether it was in place at the time of the events complained about and whether it was applicable to the care and treatment the person received and to the setting in which the care and treatment took place.
  5. We will ask the clinician or organisation complained about to tell us what if any standards or guidance they based their practice on, whether they followed them or departed from them in the situation complained about and why. If there is a relevant standard or guidance and the clinical decisions, actions and judgements do not appear to have been in line with it, we will consider what evidence there may be to explain this. We will reach a decision about whether there has been good clinical care and treatment. In doing so we will consider the explanations of those complained about and balance them against the relevant standards or guidance.
  6. We will also consider the ‘Principles of Good Administration’ insofar as they apply to the clinical context.
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