Miller v Health Service Commissioner for England  EWCA Civ 144
The Court of Appeal has handed down judgment in Miller v Health Service Commissioner for England  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.
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:
“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.”
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.
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).
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:
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.
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:
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.