The Court of Appeal has handed down judgment in Miller v Health Service Commissioner for England [2018] EWCA Civ 144 in an important decision concerning the scope of the Health Service Ombudsman's power to investigate complaints about clinical judgement. 

The appeal was brought by two GPs against a decision of Lewis J in the Administrative Court dismissing their claim for judicial review of a decision by the PHSO. The Court of Appeal granted the appeal and quashed the Ombudsman's decision. 

The original complaint to the PHSO concerned care provided to a patient who had experienced abdominal pain in June 2012. One of the appellant GPs examined the patient at home and diagnosed him with a urinary tract infection and prescribed antibiotics. However, the patient sadly passed away five days later as a result of a burst colonic abscess secondary to undiagnosed diverticular disease.

Following complaints made by his surviving wife (‘Mrs P’), an investigation was launched by the PHSO. The Ombudsman upheld the complaint brought by Mrs P about the medical treatment provided to her husband. In reaching her findings, the Ombudsman relied on specialist advice from a GP adviser and a consultant colorectal surgeon, and found his death would have been avoided had he received appropriate care.

In this article, we consider the wider implications of the Court of Appeal's decision on other Ombudsman schemes and informal, complaints adjudicators who operate similar decision-making processes.

Procedural fairness

The leading judgment of Sir Ernest Ryder (Senior President of Tribunals) emphasises that the public law principles of fairness cannot be applied identically in every situation and that cases need to be approached individually. However, in the context of the PHSO's statutory scheme, the Court found that the Ombudsman must adhere to the following standards of fairness: 

  • First, s.11(1A) of the Health Service Commissioners Act 1993 ('the 1993 Act') requires the Ombudsman to give the person concerned the opportunity to comment on the allegations contained in the complaint before deciding to conduct an investigation. The court thought this could easily be achieved by the Ombudsman sharing a copy of the initial complaint letter so the person against whom the complaint was made could see the nature of the allegations made against him. 
  • Second, the common law imports a duty of fairness that is also recognised in the 1993 Act. The court supported the following statement of Lewis J hearing the claim at first instance on what fairness requires: 

The essential requirement, recognised both by section 11 of the Act, and by the common law, is that the gist of the allegations be given with sufficient particularity to enable the person concerned to have a meaningful opportunity to comment upon the allegations.” 

  • Third, decision making bodies should not consider relevant material (supportive or adverse to their case) without giving the affected person the right to comment upon it. In particular, the Court thought good practice would be to simply disclose the complaint that has been made and identify that which it is proposed be investigated by the Ombudsman. 
  • While there is no procedural requirement to disclose the entirety of the evidence which the Ombudsman obtains, the person against whom a complaint is made "must be able to respond to the allegations and in this case that necessitated disclosure of the medical evidence upon which the ombudsman relied coincident with the delivery of the Draft Report."

The Draft Report Process

Issuing draft reports is a common step amongst many informal complaints adjudicators and is something we regularly see in practice when advising clients.  Whilst the Court did not find that the process for producing a draft report was unlawful, it found that there is a clear distinction between (a) reaching a final decision prematurely (which risks a finding that there has been pre-determination); and (b) reaching a provisional view that is disclosed for the assistance of the parties. This is therefore a timely opportunity for Ombudsman schemes to reflect on their processes and in particular ensure that if their process includes the issuing of draft reports, the provisional evaluation should clearly admit there may be other explanations and opinions that the Ombudsman has yet to consider. Draft reports and/or covering letters must make it abundantly clear that the findings are provisional and that the parties are able to make submissions and submit/rely upon their own evidence (such as expert evidence) in reply. Any final decisions then issued should make it clear how any such further submissions have been considered and the impact if any they have had on the final decision and the reasons why.

The standard of review

It has already been established by the court that it is for the Ombudsman to decide and explain what standard he/she will apply in determining whether there has been maladministration. In Miller, the Court reaffirmed that it would only interfere with the standard adopted if it is Wednesbury unreasonable.

In this particular case the court felt that the Ombudsman's standard (which was to 'assess the service provided against the Ombudsman's Principles, and relevant standards for the service at the time of the matters under investigation (such as GMC, NICE and/or local policies)') was unreasonable and irrational. The court felt that it did not permit of nuances in clinical opinion or practice and there was no yardstick of reasonable or responsible practice but rather a 'counsel of perfection that can be arbitrary'. However, it is at least comforting to nevertheless see the Court of Appeal recognise the wide scope of the Ombudsman's discretion and that there will generally be only exceptional circumstances where the court interferes (Wednesbury unreasonableness being a high threshold to meet).

Alternative legal remedy

The 1993 Act provides that a complaint shall not be investigated if the complainant has or had an alternative remedy (such as through the courts or tribunals), unless the Ombudsman thinks it is not reasonable to expect (or to have expected) the complainant to pursue that alternative remedy.

In Miller, Mrs P had an alternative remedy by way of a claim in clinical negligence which she did not pursue.

In making her complaint to the PHSO, Mrs P said she was looking for an acknowledgement of failings, an apology and action taken to prevent recurrence. She later clarified that financial compensation 'would help' although this was not her primary motivation.

The Court of Appeal found that the question whether a person is seeking financial redress is relevant to considering whether the complainant has another remedy available, i.e. through a court or tribunal. However, it is not the case that an ombudsman cannot consider a complaint where the complainant is seeking financial redress. The key decision is around whether it is reasonable to expect the complainant to pursue that alternative remedy and in respect of that decision it is a matter of weighing several factors. The court helpfully added that: 

  • if the complainant is primarily seeking financial redress, that points to the legal remedy being appropriate; and
  • if the person is primarily seeking an apology or wider systemic change, that points to the legal remedy being inappropriate.

Neither of the above factors is, however, conclusive and the Ombudsman must consider all the circumstances of each case on its merits, including the complainant's financial circumstances.

Good Practice 

The judgment in Miller provides a number of points which it identifies as representing good practice that Ombudsmen who operate similar schemes may wish to take note of. In particular: 

  • where a scheme includes an initial 'assessment' stage, the Court felt it was inappropriate to leave the internal assessment documents on file to be seen by those subsequently investigating the complaint, as in the Court's view this risked affecting the investigator's views such that there could be seen to be 'pre-determination'. This is an interesting view for the Court to have expressed given that whilst in practice a number of ombudschemes adopt this approach there is no requirement in the statutory schemes for the initial assessment stage to be conducted by a separate individual. One way to address this may, therefore, be to have one investigator conduct the whole process from the lodging of the complaint to the final decision. 
  • ensuring that staff follow good practice and internal policies in the way intended, in particular in the language used in internal documents and correspondence which may be on the complaint file. Language used throughout internal and external correspondence can also be interpreted by a court as giving an impression of pre-determination. If for example language used about a complaint during the investigation process is firm, conclusive and adverse if may infer that there is no possibility of doubt in the complainant's favour. It is important not to undertake an investigation that starts on the understanding that there either has or has not been fault; the process must factor in an element of doubt and open-mindedness; 
  • where a scheme requires considerations of fundamental questions such as the availability of an alternative remedy, the Ombudsman must consider all of the circumstances of the case, undertake a balancing exercise and make a reasoned decision for the exercise of discretion (whichever way it is);
  • for complaints adjudicators who rely on expert evidence to reach findings of fault or service failure then there should be early disclosure of those expert reports alongside so that the subject of the complaint has an opportunity to see and fully respond to the case against them.

Overall the judgment re-affirms the importance of the role and function of Ombudschemes, which offer a valuable route of redress for persons aggrieved by fault or service failure by the bodies or organisations that fall within the remit of those schemes. In particular, it affords a free and less formal way of getting redress than through the courts and Ombudschemes are often able to recommend a wider set of remedies, including apologies or systemic changes that might not be available through traditional proceedings before a court or tribunal. 

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