Health and Disability Commissioner unreasonably applied ‘gold standard’ when deciding on dental practitioner’s professional clinical standards
Whether breach of professional clinical standards had been established—Health & Disability Commissioner (Code of Health & Disability Services Consumers’ Rights) Regulations 1996— whether Commissioner acted unreasonably in informing practitioner’s employer of alleged breach without first providing practitioner with adequate opportunity to respond—whether Commissioner unreasonable in failing to compensate practitioner
This related to complaints under both the Official Information Act and the Ombudsmen Act, arising from a finding by the then-Health and Disability Commissioner (the Commissioner), that treatment provided by a dental practitioner ‘did not meet accepted clinical standards’—contrary to Right 4(2) of the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 (‘the Code’).
The first issue was whether the Commissioner had acted reasonably in forming a view that the practitioner had failed to comply with professional standards without first adequately establishing what the relevant standard was. Apart from special provisions arising from particular contracts, the standard of care expected of any professional medical/dental practitioner is that expressed in Right 4(1). That standard has been expressed by the House of Lords in Maynard v West Midlands RHA  1 All ER 635 (HL) in this way:
In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men...The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.
As it transpired, the practitioner was not found to have breached that standard. Rather it was found that he ‘did not meet professional clinical standards’—here meaning those taught at the School of Dentistry, but by no means generally applied by the profession. In fact, the evidence of dental practitioners consulted, including those associated with the School of Dentistry, when fully apprised of the facts, was that they would probably have treated the patient in a manner similar to that actually applied.
It therefore seemed unrealistic to suggest that a patient could be said to have a ‘right’ to any more than a minimum or generally acceptable standard of professional or ethical treatment. That is, a patient should have the right to basic standards of care on which there is wide consensus within the professional body. To put it another way, a practitioner cannot be said to be in breach of Right 4(2) if his or her clinical standard conforms with widely accepted basic standards of care. It would be unreasonable to find the contrary in the absence of substantial supporting evidence.
The Commissioner may well form a view that professional standards are in need of improvement in some particular respect, but that would seem to be a matter to be taken up with the professional body in the first instance, rather than be demanded of an individual practitioner.
The second issue was whether notification to the practitioner’s employer of the alleged breach, without having first clearly established the standard in question and given the practitioner an adequate opportunity to answer the allegation, was also unreasonable. The view was formed that it was.
Ultimately, the Commissioner’s decision was reviewed by the new Commissioner and withdrawn, and an apology was tendered to the practitioner.
The question then arose as to whether the Commissioner acted unreasonably in failing to make an ex-gratia payment in recognition of the losses said to have been incurred by the practitioner. It was concluded that having regard to the protections provided by the statutory regime under which the Commissioner operates, in the absence of evidence of bad faith, a formal recommendation for such a payment should not be made.
The case illustrates two matters of importance. Firstly, the necessity to distinguish clearly between the first and second limbs of Right 4, so that the practitioner may know precisely the nature of the alleged breach. Secondly, the need for considerable caution in the exercise of the very wide powers conferred upon the Commissioner where precipitate action could seriously and unfairly affect a practitioner without any significant benefit to the patient, or to the public.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.