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

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.”