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MAR
20
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DDU reassured by Court of Appeal ruling that Ombudsman's decisions must be fair and just

DDU reassured by Court of Appeal ruling that Ombudsman's decisions must be fair and just

 

A recent Court of Appeal judgment has criticised the fairness and scope of the former Parliamentary and Health Service Ombudsman’s procedure for investigating clinical complaints against healthcare professionals. The GPs in the case were jointly represented by the MDU and another medical defence organisation but the judgment will also have positive implications for dental professionals.

The court considered exactly how the Ombudsman applied her discretion to investigate a complaint. It found an investigation should not begin where a complainant has another legal remedy open to them (other than complaining to the Ombudsman) unless the Ombudsman “is satisfied” that it was not reasonable to expect the complainant to use the alternative legal remedy. The Ombudsman must obtain and analyse information related to the complainant’s particular circumstances and not simply refer to general criteria. 

The court also provided welcome clarity on the standard applied by the Ombudsman to determine whether or not the exercise of clinical judgement was reasonable.

The judge commented:

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. It is unreasonable and irrational and accordingly, unlawful.”

John Makin, Head of the DDU said: “This judgment will have positive implications for dental professionals. When their clinical judgement is criticised, the Ombudsman can investigate what happened, reach conclusions and make recommendations if service failure is found. It is essential that the standards used by the Ombudsman to judge the clinical care provided to a patient are appropriate. Dental professionals should not be held to unreasonably high standards. It is also important that the Ombudsman stays within its legal powers and does not investigate exactly the same facts as a court would consider as this could present double jeopardy for dental professionals.  

“Those facing an investigation into their clinical practice should have reassurance that the processes being followed by the Ombudsman are fair and just. This judgment is good for healthcare professionals, and will also benefit patients who can be assured that the investigation was properly and fairly carried out.”

 

The DDU, the specialist dental division of the MDU, is a not-for-profit organisation wholly dedicated to our members’ interests. Our team is led and staffed by dentists with real-life experience of the pressures and challenges faced in practice.

 

We offer our members expert guidance, personal support and robust defence in addressing dento-legal issues, complaints and claims. Our customised services range from legal assistance to indemnity to appropriate CPD.

theddu.com

  1618 Hits
1618 Hits
FEB
16
0

Government working party should tackle runaway legal costs, says DDU

Government working party should tackle runaway legal costs, says DDU

 

The Dental Defence Union (DDU) said today the establishment of a Civil Justice Council working group to consider fixed legal costs in clinical negligence claims is a positive step in tackling runaway legal costs.

John Makin, head of the DDU, said:

“The announcement of a Civil Justice Council working group to examine excessive legal costs in clinical negligence claims is a delayed but still welcome first step. Proposals to make claimants’ lawyers costs more proportionate to the compensation their clients receive were first mooted back in 2015. We hope that things will move ahead faster now.

“Even with dental claims, which are generally lower in value than medical awards, the fees charged by claimant lawyers are still, on average, above the level of compensation awarded and that cannot be right. For example in one settled claim, the claimant’s costs were more than quadruple the settlement figure received by the patient.

“Patients who believe they have been negligently harmed must have access to justice, but fixed costs are fairer and will help to establish some much needed balance to the system.

“We will be happy to take part in the working party to represent our members’ views. However, disproportionately high costs charged by claimants’ lawyers are only part of the problem. The cost of litigation is becoming unaffordable for the dental profession and the NHS. The Government needs to take more decisive action. We urgently need more radical legal reform to restore balance to the system for clinical negligence claims.”

 

The DDU, the specialist dental division of the MDU, is a not-for-profit organisation wholly dedicated to our members’ interests. Our team is led and staffed by dentists with real-life experience of the pressures and challenges faced in practice.

We offer our members expert guidance, personal support and robust defence in addressing dento-legal issues, complaints and claims. Our customised services range from legal assistance to indemnity to appropriate CPD. 

theddu.com

  1945 Hits
1945 Hits

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