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The Memorandum of Understanding (MoU) between the Ombudsman and the Irish Medical Council (IMC), signed last March, has given rise to concerns over the coming together of two statutory bodies while also making complaints against doctors easier. The MoU makes it clear that the Ombudsman cannot investigate complaints against doctors that relate to ‘clinical judgment’ but the Ombudsman is given total discretion to what can be defined as such. This amounts to a delegation by the IMC of an important element of its regulatory remit when it comes to doctors practising in the public health service and in nursing homes.

According to David Nutley, Head of Communications at the Office of the Ombudsman, “the Ombudsman Act 1980 (as amended) sets out the type of complaints the Ombudsman can and cannot examine.  The Act provides that the Ombudsman cannot examine complaints about the actions of: ‘persons when acting on behalf of health boards and (in the opinion of the Ombudsman) solely in the exercise of clinical judgement in connection with the diagnosis or illness or the care or treatment of a patient…’

He went on: “In other words the Oireachtas has decided that the decision on whether an action constitutes ‘clinical judgement’ is best left with the Ombudsman. Staff in the Office of the Ombudsman have received appropriate training and have the necessary experience to advise the Ombudsman in this regard”, he assured.

It was suggested that this move may have been prompted by recent cases that have garnered negative press on the IMC, such as in the case of Professor Martin Corbally.

The Ombudsman’s representative denied the connection between any particular event and the creation of this MoU. Mr Nutley claimed that it was long overdue, facilitating a more straightforward method of processing complaints. “The decision to enter a Memorandum of Understanding with the Medical Council was not prompted by any particular incident or complaint. The MoU with the Medical Council follows similar MoUs recently agreed between the Office of the Ombudsman and (i) HIQA, and (ii) the Ombudsman for Children.

“The MoU recognises that both the Medical Council and the Ombudsman receive complaints and information from the public about health services that may be appropriate to the other Office.  We want to ensure that this information is channelled to the appropriate office.  The MoU facilitates this exchange of information and will help to ensure that anyone with concerns about the treatment they receive will have those concerns addressed properly, thoroughly and promptly”.

Ombudsman investigations are held in private, which could be a positive for doctors who feel that the public exposure of those in their profession brought before the IMC has a negative impact on their careers, even when no sanction is imposed.

However, the MoU envisages the Ombudsman referring any complaints to the IMC as a result of his investigation, which adds another layer of official supervision on doctors in the public health service and in nursing homes.

For doctors in the Public Health Service reliant solely on the CIS (Clinical Indemnity Scheme) for indemnity cover, complaints to the Medical Council or for complaints to the Ombudsman will not be covered.

Mr Nutley stated: “We cannot comment on the cover provided by the Clinical Indemnity scheme. The Ombudsman examines the actions of public bodies, for example the HSE or a public hospital, and not individual staff members, as such. If the Ombudsman finds that a public body’s actions amount to maladministration then he may recommend ‘redress’ for the complainant. It would be a matter for the public body to provide for any redress that may be recommended”.

In an effort to simplify the complaint process within the healthcare system, the Ombudman has established a new website, enabling complainants to lodge a formal complaint against a doctor in the HSE from their laptops, tablets, or mobile phones.

While this has been done in the interest of ensuring that Irish health and social care services are provided to the best possible standard, some doctors have expressed their concern that this could make the process of complaint too easy, potentially resulting in professional damage, as well as, at times arguably unwarranted, additional stress for those who may receive a minor admonishment at most.

Mr Peter Tyndall received his warrant of appointment as Ireland’s Ombudsman and Information Commissioner from President Michael D Higgins on the 2nd December 2013. As Ombudsman, he is ex-officio member of three important statutory oversight bodies: the Commission for Public Service Appointments, the Referendum Commission and the Standards in Public Office Commission.

This article has been amended. Dr Rob Hendry, Medical Director, Medical Protection, reached out to IMN with the statement: “The Medical Protection Society (MPS) has extensive experience in advising and assisting members in Ireland with all aspects of the medicolegal issues that arise from their professional practice. Our team regularly advises members on the management of complaints – including complaints to the Ombudsman. Our members can rest assured that if they are held to account by the Ombudsman or the Medical Council in Ireland, they can contact MPS to request advice and support. We encourage our members to contact us as soon as they are aware of the matter.”