Information on Malpractice case example used by Ombudsman at Local Government Regeneration Committee

Tracey Gardiner made this Freedom of Information request to Scottish Public Services Ombudsman

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was refused by Scottish Public Services Ombudsman.

Dear Scottish Public Services Ombudsman,

Please provide me with the following information relating to the case discussed at question 19 here http://www.scottish.parliament.uk/parlia...

1. What health board was involved in this case?
2. What was the outcome of this case and what measures/recommendations were put in place to ensure this will not happen again?
3. Given the Ombudsman said he would argue this was deliberate malpractice, were the GMC informed as per No 6 in the MOU between the SPSO and GMC?
4. What is the reference no. to this case?
5. Where can I find the published investigation/decision report on this case?

Please be aware of the fact I am not requesting any details other than what would normally be published in the case summary. I have searched your website as well as monthly newsletters from 2013 - 2015 and mainstream media, unfortunately, I cannot find any information that would relate to this case? Obviously, given the fact this a health case I would assume the public interest test would apply? Given the fact that your office had to keep pressing, thankfully, the health board/clinician were obviously trying to obstruct your investigation and that is concerning.

Question and answer from LGRC meeting below.

: Question 19 is:
“How many cases in the year involved corruption or
deliberate malpractice”
and do you have any examples of that?

Yes. What lies behind the question
is a question about how often we see deliberate
actions of that type. I am pleased to say that they
are quite rare, although we have seen some. For
example, in a particularly difficult health board
case it was suggested that the national guidance
on how to deal with a specific condition had not
been followed because the health board had a
local protocol in place. Rather than just accept
that, we pressed and pressed until we found out
that there was no local protocol, and that a
clinician who had been involved in the original
complaint had signed off that there was such a
protocol. I argue that that was deliberate
malpractice. I am pleased to say that we see such
cases rarely.

Yours faithfully,

Tracey Gardiner

Scottish Public Services Ombudsman

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Dear Ms Gardiner

Please find attached my letter of today's date.

Yours sincerely

Helen Littlemore
Corporate Information Governance Officer
SPSO

Scottish Public Services Ombudsman
4 Melville Street Edinburgh EH3 7NS
tel 0800 377 7330 fax 0800 377 7331
web [1]http://www.spso.org.uk

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Dear Ms Littlemore

I acknowledge your response dated 21 April and accept your apology for the delay in formally acknowledging my request for information dated 10 April 2016.

I would be grateful if you could clarify whether I can expect your reply to the five questions I asked on 6 May at the latest in line with the 20 working days allowed under FOI Act rather than the 9 May stated in your response?

Yours faithfully,

Tracey Gardiner

Scottish Public Services Ombudsman

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Scottish Public Services Ombudsman

Dear Ms Gardiner

Thank you for your email of 21 April 2016.  In your email you ask me to
clarify when you can expect a reply to your request.  I can confirm that
we will reply to you by 9 May at the latest.  Please note that this
deadline takes account of the early May bank holiday.

Yours sincerely

Helen Littlemore
Corporate Information Governance Officer

Scottish Public Services Ombudsman
4 Melville Street Edinburgh EH3 7NS
tel 0800 377 7330 fax 0800 377 7331
web [1]http://www.spso.org.uk

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Scottish Public Services Ombudsman

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Dear Ms Gardiner

Please find attached my letter of today's date.

Yours sincerely

Helen Littlemore
Corporate Information Governance Officer

Scottish Public Services Ombudsman
4 Melville Street Edinburgh EH3 7NS
tel 0800 377 7330 fax 0800 377 7331
web [1]http://www.spso.org.uk

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Tracey Gardiner

Dear Scottish Public Services Ombudsman,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Scottish Public Services Ombudsman's handling of my FOI request 'Information on Malpractice case example used by Ombudsman at Local Government Regeneration Committee'.
Your office has not provided me with the information I requested, instead I have received a link to a case from 2012 which is unrelated to the request I submitted.

As you will see from my FOI request I specifically requested information related to a case the ombudsman referred to in his response to question 19 at a Local Government and Regeneration Committee meeting in 2015. Neither the meeting or the questions asked were in relation to SPSO reports from 2012 and are in fact specific to your annual report from 2013/2014.

Additionally, the ombudsman in his response states 'it was suggested that the national guidance
on how to deal with a specific condition had not been followed because the health board had a
local protocol in place' and the information in the 2012 case refers to RGOC guidelines on a specific procedure (amniocentesis). He also stated that 'Rather than just accept that, we pressed and pressed until we found out that there was no local protocol, and that a clinician who had been involved in the original complaint had signed off that there was such a protocol. I argue that that was deliberate malpractice.'

I refer to paragraphs 13 and 14 in the 2012 case which is not in keeping with the above statement.

I was also advised that case files are deleted in line with your retention and disposal guidelines therefore your office did not hold the information relating to question 3 in my FOI request. Given the unrelated case in 2012 was laid before Parliament your office should still hold that information in accordance with your retention and disposal guidelines?

The information I requested relates to the case cited by the ombudsman from the 2013/2014 annual report which again your office should still hold in accordance with retention and disposal guidelines which are available on your website.

http://www.spso.org.uk/sites/spso/files/...

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/i...

Yours faithfully,

Tracey Gardiner

Scottish Public Services Ombudsman

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Scottish Public Services Ombudsman

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Dear Ms Gardiner

Please find attached my letter of today's date.

Yours sincerely

Helen Littlemore

Corporate Information Governance Officer

Scottish Public Services Ombudsman
4 Melville Street Edinburgh EH3 7NS
tel 0800 377 7330 fax 0800 377 7331
web [1]http://www.spso.org.uk

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Scottish Public Services Ombudsman

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Dear Ms Gardiner

Please find attached Ms Maclean's letter of today's date.

Yours sincerely

Helen Littlemore
Corporate Information Governance Officer

Scottish Public Services Ombudsman
4 Melville Street Edinburgh EH3 7NS
tel 0800 377 7330 fax 0800 377 7331
web [1]http://www.spso.org.uk

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Tracey Gardiner

Dear Scottish Public Services Ombudsman,

Thank you for your review of my information request. I wonder if you could provide some clarification regarding quite a lot of the information you supplied in your response in order for me to make an educated decision on whether to submit an appeal to the Information Commissioner's Office. Basically I can’t find any factual information contained in your response that would support your understanding/considerations - I asked for a review and provided facts that support the information in 2012 case is the case the Ombudsman refers to in the meeting with the LGRC in 2015.

Could you please point me to where it clearly states in the LGRC report that the Ombudsman’s response to question 19 was not linked to a specific year please?

Could you please clarify why you consider paragraphs 13 and 14 and 32 are in keeping with that response to Q19, given the fact the Ombudsman clearly states ‘that national guidance (NICE) on how to deal with a medical condition had not been followed and the information your office referred me to is clearly unrelated to a medical condition or NICE guidelines? Full text from the related paragraphs copied below and are clearly not in keeping with the Ombudsman’s response to Q19.

Could you also provide clarification on why you understand the response to question 19 provided a general example and was not linked to a specific year. My understanding of his response is that he provided a specific answer to a specific question - see points a - g below.
a. Cameron Buchanan asked the Ombudsman about cases ‘in the year’ (2013/2014)
b. Members of the public were invited to submit questions based on your office’s annual report from 2013 to 2014
c. Question 19 was submitted under the remit specified in the call for questions 2014
d. Cameron Buchanan did not ask the Ombudsman for a general example - he asked him to ‘empathise malpractice’
e. The Ombudsman did not provide a general example in his response - he provided information from a specific case report and emphasised his argument for ‘deliberate malpractice’.
f. You clearly agree with the Ombudsman’s confirmation that these cases are not general examples as they rarely seen in your investigations
g.From your understanding of his response to Q19 - how often does the Ombudsman publicly argue a case was ‘deliberate malpractice’ as a general example of casework?

With regard to my question under No.3 of my request, I asked if the SPSO informed the GMC of the deliberate malpractice committed by the clinician as per point 6 in the Memorandum of Understanding between both organisations. In my review request I asked about your retention and disposal guidelines policy on the 2012 case report as it had been laid before Parliament therefore the information should be kept indefinitely and not deleted/destroyed - in your response you provide confirmation on your laid reports.

‘ I can confirm that, while our laid reports are published and kept by the SPSO and the Scottish Parliament indefinitely, our case files are permanently deleted after three years of no activity. Amongst other considerations, our policy sets out that long retention periods can be a costly and ineffective way to manage casework knowledge and could be seen as a contravention of the Data Protection Act 1998 5th principle if retention serves no business purpose. The 5th principle states that 'personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.' I am satisfied that you were correctly advised that no further information is held in response to your request’

Could you clarify whether my understanding of investigation reports laid before Parliament is correct
Could you also provide clarification on your reference to a contravention of Principle 5 of the DPA if a retention serves no business purpose?
Published reports do not contain personal information, in accordance with FOISA they are anonymised.
Case report investigations for complaints have a retention schedule of 10 years and can be retained in electronic form with no impact on business - all personal data can be removed or anonymised from an electronically stored case report after 3 years of no activity in other organisations as long as a surname or postcode or both are left for identification purposes.
Are you confirming that the SPSO do not retain any information of complaints, case reports, investigations in electronic form after 3 years of no activity?
Are you confirming the SPSO policy is the destruction of all case report investigations stored electronically in accordance with Principle 5 of the Data Protection Act 1998 as it is costly and ineffective and serves no business purpose?
Are you confirming that the SPSO have different legislative and regulatory obligations when deciding on retention and disposal periods than other public bodies? Does the Records Management Code of Practice not apply to the SPSO?
The information I requested relates to the case cited by the ombudsman from the 2013/2014 annual report which again your office should still hold in accordance with retention and disposal guidelines which are available on your website. The information provided in the Ombudsman’s response to question 19 indicates that the clinician provided false documented information which suggests a breach of Sections 13 and 14 of the SPSO Act 2002 as well as deliberate malpractice and definitely falls into the remit of point No.6 in the Memorandum of Understanding between the SPSO and the GMC.

The 2012 case does not,

It is my understanding that the laid investigation reports are published in full as the Ombudsman has deemed that the outcomes of these investigations are in accordance with the Public Interest test under FOISA.Given the fact you provided me with a link to the published 2012 case investigation report and it contains no information relating to deliberate malpractice therefore renders the responsibility to inform the GMC moot. Furthermore it contains no information to suggest a clinician who was involved in the original complaint had signed off a local protocol for a specific medical condition and was the reason that national guidelines

Paragraphs 13, 14 and 32
I stated that the information contained in paragraphs 13 and 14 of the 2012 case report was unrelated to the information the Ombudsman supplied to LGRC, therefore, not the information I requested. Following your review you also refer to paragraph 32 of the 2012 report to further support your previous considerations regarding paragraphs 13 and 14 copied below.

13. In their response dated 22 September 2011 to Mr and Mrs C, the Board said that Doctor 1, who is a member of the RCOG, had followed the RCOG Guideline, which was not obligatory to follow, in as much as he could. However, the Board had in place their own protocols, which were obligatory. The Board stated that any deviations from these protocols were questioned and had to be explained. The Board said that Doctor 1 had followed these protocols thoroughly and had carried out the amniocentesis procedure correctly.

14. I sought clarification about the protocols referred to in paragraph 13 and received a statement from Doctor 1 who said that the comment made was a general one about RCOG Guidelines. He added 'we do not have a protocol for the Amniocentesis to follow in the NHS Highland; otherwise I would have followed it'.

32. It has become evident in this investigation that no protocols exist (see paragraph 14). Mr and Mrs C could construe that the comments in the letter to them dated 22 September 2011 from the Chief Executive were misleading (see paragraph 13).

2012 case is about: Amniocentesis which is a medical procedure and. RCOG guidelines ( Royal college of Obstetricians and Gynaecologists )e.g.
‘The Board said that Doctor 1 had followed these protocols thoroughly and had carried out the amniocentesis procedure correctly.’ The Chief Executive is cited as the person who tried to mislead Mr and Mr’s C about local protocol.
A clinician does not perform these procedures, this is a specialist procedure and is carried out obstetrician or radiologist hence RCOG guidelines.

Response to Q19 from LGRC meeting is about: a Medical Condition which is a diagnosis of a disease or illness and NICE guidelines (The National Institute for Health and Care Excellence) The clinician involved in the original complaint tried to mislead your office by signing off that there was a local protocol in place and your office pressed and pressed until you got the truth. Hence the Ombudsman’s ‘deliberate malpractice’ argument.

Different guidelines, difference between medical condition and a medical procedure, a clinician tried to mislead the SPSO investigation by signing off on a local protocol. A Chief Executive tried to mislead the complainants - not the SPSO - confirmed in paragraph 32.

As an aside, I found one of your statements in the same meeting with the LGRC extremely alarming ‘ That SLA requires the PHSO to provide clinical advice to us; it is for us to decide how we use that advice in our decisions.’ I assume you are aware of The Patient Charter and the Data Protection Act when you request a medical report from a clinical adviser and consult the actual patient before deciding how you would use clinical advice in your decisions.It would be disengenuous for the SPSO to make decisions on how to use clinical advice from a medical professional - your statement is suggestive that the SPSO can play God with people’s lives and most definitely come under the banner of Natural Justice.

Yours faithfully,

Tracey Gardiner

Scottish Public Services Ombudsman

This is an automated receipt from SPSO to let you know that we have
received your email. Please do not reply to this.

 

If you have emailed a new complaint, we will register it and acknowledge
it in writing within three working days. We provide you with a reference
number which should be used in any future correspondence with us.

 

If your email was not a new complaint, it will be forwarded to the
appropriate colleague who will reply to you in due course.

 

If we have been copied into this email, we will not respond or take action
on this matter.

 

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Tracey Gardiner left an annotation ()

The response from the SPSO suggests they do not know the difference between a medical condition and medical procedure used only in pregnancy!!

Scottish Public Services Ombudsman

1 Attachment

Dear Ms Gardiner

Please find attached Ms Maclean's response of today's date.

Yours sincerely

Helen Littlemore
Corporate Information Governance Officer

Scottish Public Services Ombudsman
4 Melville Street Edinburgh EH3 7NS
tel 0800 377 7330 fax 0800 377 7331
web [1]http://www.spso.org.uk

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