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Clinical Advice Review: Final report and our response

Balancing evidence and ensuring everyone understands how we use it to reach decisions

Recommendations 

The Independent Adviser proposed that: 

  • PHSO should ensure appropriate emphasis and weight is given to the opinions of patients and family members on clinical events. 

The Review fully supports this principle and recommends that PHSO: 

  • provide additional support to caseworkers in assessing the balance of evidence received from complainants and organisations we investigate, including where an organisations clinical records are missing/partial and how this should inform decision making. 

The Review received assurance from a number of consultees that the Ombudsman’s new Clinical Standard was sufficiently clear but some suggested that further examples of how it is being applied in our casework would be useful for organisations we investigate. The Review recommended PHSO:

  • produce a series of case studies, once a sufficient sample of cases has been completed using the Standard, to support organisations we investigate to understand how PHSO is using it. 

Findings

The Review heard from a number of complainants that they felt their evidence and testimony were given less weight than the organisations complained about and that they felt ‘disbelieved by default’.

Caseworkers noted that it could be difficult to weigh evidence from both sides: organisations being investigated often have more written evidence than the complainant, who at times has their personal testimony alone.

The Review was clear that contemporaneous clinical records are often an essential element of the evidence informing our decision. However, they heard that we could be clearer on how these are balanced against personal recollection and how the balance might shift in cases where such clinical evidence is missing or disputed.

The Review also consulted on the Ombudsman’s new Clinical Standard, which sets out how he decides whether or not there have been failings in clinical judgement and the range of evidence considered when making this decision.

The Review heard some concerns from medical defence organisations that the Clinical Standard set the bar too high in looking at “good” rather than “reasonable” care and that it is was not clear how this would be applied in practice. However, it also heard positive feedback from some medical professionals and patient organisations as to its clarity.

Our response

In 2019/20 we will: 

  • Produce new caseworker guidance on assessing the balance of evidence, make this available online and include it in the information provided to complainants at the outset of their case. 
  • Adapt our training programme to incorporate this guidance. 
  • Publish case studies on how PHSO is applying the Clinical Standard to allow the organisations we investigate and others to understand how it is used in practice.