Ombudsman Peter Tyndall said a huge number of complaints about clinical judgment had “nowhere to go” because he did not have the power to deal with them.
Because the Supreme Court had set the bar very high for the regulatory authorities to hold fitness-to-practice inquiries a large gap had developed in the system.
“It is not just that I don’t have jurisdiction over clinical judgments, technically, neither does the HSE,” said Mr Tyndall.
In England, Wales, Scotland and the North, the ombudsmen can investigate such complaints that form a large part of their workload.
Complaints about clinical judgment are investigated by the ombudsmen in Britain and referred to the regulatory authority.
Issues of a disciplinary nature are referred back to the health authority.
Mr Tyndall said the system for investigating complaints about clinical judgment “did not work” in Ireland.
He pointed out that just one doctor was referred by the HSE to the Medical Council in 2013, the latest year for which figures are available.
In 2012, the General Medical Council in Britain received 2,003 inquiries from employers about doctors.
Mr Tyndall’s office recently made a formal submission to the Department of Public Expenditure and Reform seeking to extend its jurisdiction to matters relating to clinical judgment and was also consulting with the Department of Health on the issue.
An investigation by the Ombudsman, published yesterday, confirmed his fears that complaints about people’s experience of the health service were not reaching him for fear of repercussions.
People also found it difficult to know how to go about making a complaint and felt it would make no difference as no good would come of it.
“We came across a complaints’ box which was locked and the key was lost,” said Mr Tyndall, who did not name the hospital.
The ombudsman has recommended that the HSE and each hospital put an action plan in place to make it easy for people to complain.