R (Miller & Howarth) v The Parliamentary and Health Service Ombudsman [2015] EWHC 2981 (Admin)The Court's judgment in favour of the Defendant Parliamentary and Health Service Ombudsman ("the
R (Miller & Howarth) v The Parliamentary and Health Service Ombudsman [2015] EWHC 2981 (Admin)
The Court's judgment in favour of the Defendant Parliamentary and Health Service Ombudsman ("the Ombudsman") provided important judicial clarity of the scope of the Ombudsman's powers to investigate complaints, and the standards by which she may review a practitioner's clinical judgement.
The Ombudsman is empowered by the Health Service Commissioners Act 1993 (as amended) ("the Act") to investigate complaints of "injustice or hardship" caused by NHS treatment[1]. The Act provides that in determining whether to initiate, continue or discontinue an investigation, the Ombudsman shall act in accordance with her own discretion[2]. The Ombudsman should not proceed with an investigation if a complainant has an alternative legal remedy open to them unless she is satisfied that in the particular circumstances it is not reasonable for the person to have resorted to it[3].
Background
The Claimants were two doctors who treated Mr P successively over a short period in June 2012 through an NHS GP surgery. Dr Howarth initially diagnosed a urinary tract infection and prescribed antibiotics to Mr P. Dr Miller, during a telephone conversation with Mr P's wife (Mrs P) two days later, stated that Mr P's condition could not be expected to have improved because the antibiotics he had been prescribed would take time to have an effect. Mr P died of undiagnosed peritonitis two days after Mrs P's conversation with Dr Miller.
Mrs P complained to the surgery about the treatment of Mr P and later in writing to the Ombudsman. She complained explicitly about Dr Howarth and stated that she did not blame Dr Miller as she was only acting on Dr Howarth's earlier medical notes. When the Ombudsman asked Mrs P in a later telephone conversation why she did not want Dr Miller to be investigated, she stated that on reflection she was happy for her performance to be investigated also. The Ombudsman decided that the scope of her investigation would include both Claimants' treatment of Mr P.
The Ombudsman's report of October 2014 found that Mr and Mrs P had suffered an injustice and Mrs P's complaint was upheld. The Ombudsman's report added that some aspects of each Claimants' treatment of Mr P fell so far below the General Medical Council's standards and guidance that they amounted to a service failure[4].
Judicial review claim
The Claimants rested their claim against the Ombudsman's investigatory procedure and findings on six wide-ranging grounds[5]. The Court dismissed each of these and decided, ultimately, that the Ombudsman had lawfully investigated and reached a judgement upon Mrs P's complaint. The most significant grounds of challenge, and the Court's discussion of and judgement on these, were as follows:
The Court recognised that Mrs P's initial letter of complaint to the Ombudsman criticised Dr Howarth's treatment alone but took the view that "more fundamentally" she had complained of the "treatment that failed to avoid [Mr P's] death"[6]. It would not, in the Court's view, be unreasonable to consider that Mrs P's letter of complaint did not seek to limit the scope of the Ombudsman's investigation, notwithstanding that she felt that the practitioner at fault was Dr Howarth and not Dr Miller. Further, the Court stated that the Ombudsman was entitled to reconsider the scope of the complaint and to determine whether or not she was investigating all the matters raised by the complaint; "the Ombudsman's remit is to investigate complaints about injustice. She has a wide discretion as to how to set about that". Mrs P's complaint could reasonably be read as covering the actions of both Claimants leading to the alleged injustice and the Ombudsman did not act unlawfully in deciding to investigate Dr Miller's performance as well as Dr Howarth's.
The Court established that the Act did not require the Ombudsman to adopt any particular standard of review. It cited Attwood v Health Service Commissioner[8], in which Burnett J considered that the concept of "injustice" does not "stick like glue to notions of illegality and loss in common law" and that when it created the Ombudsman and its enacting legislation, it was clear that Parliament did not intend to create a parallel jurisdiction to the Courts in which established legal concepts should be "read over". The Ombudsman's general remit entitled her to decide upon the standard of review she applied[9]. Further, the 1995 statement (which had, the Court agreed, in fact bound the Ombudsman in the Attwood case) had been surpassed by subsequent statements[10] made by the Ombudsman. These statements clarified that she would determine complaints according to "general standards of good administration and the specific standards governing the legal, policy and administrative framework and the professional standards relevant to the events in question"[11], and whether the complaints she investigated represented a departure from those standards so as to constitute a service failure. In identifying the relevant professional standards as being the GMC's guidance, the Ombudsman had applied the correct approach in accordance with her publicly available statements and had, accordingly, acted lawfully[12].
Mrs P sought an acknowledgment of the Claimants' failings, an apology and action to prevent recurrence; when asked by the Ombudsman whether she was seeking any compensation if the complaint was upheld, she replied that "it would help"[13].
The Court considered that the non-financial outcomes Mrs P was seeking were not available through legal action and the Ombudsman's investigation was not barred by s.4 of the Act[14]. This was despite Mrs P's reference to financial compensation in her telephone conversation with the Ombudsman (this did not amount, in the Court's view, to a request for financial compensation) and an earlier reference she had made in her complaint to the Claimants' clinic to having sought a solicitor's advice and having a good case for negligence; these factors had to be seen "in the context of a person who was seeking an explanation for her husband's death, not a person seeking to pursue a claim for damages for clinical negligence" and in view of the wider non-financial outcomes Mrs P pursued which could not be satisfied by a successful claim for negligence.
The Judgment reminds us of the relatively wide discretion afforded to the Ombudsman's investigations, and that the Court will often be slow to interfere where it is argued that a complainant has an alternative remedy available to them.
[1] See ss.2A and 3(1) (the "general remit") of the Act
[2] S. 3(2) of the Act
[3] S. 4 of the Act
[4] Paragraph 26 of the judgment
[5] Paragraph 2
[6] Paragraph 58
[7] Bolam v Friern Hospital Management Committee [1957] 1 WLR 382
[8] [2008] EWHC 2315 (paragraph 27)
[9] Paragraph 87
[10] Articulated in a report presented to Parliament in 2009 entitled, "Six Lives: the provision of public services to people with learning disabilities"
[11] Paragraph 89
[12] Paragraph 90
[13] Paragraph 13
[14] Paragraph 95
The Court's judgment in favour of the Defendant Parliamentary and Health Service Ombudsman ("the Ombudsman") provided important judicial clarity of the scope of the Ombudsman's powers to investigate complaints, and the standards by which she may review a practitioner's clinical judgement.
The Ombudsman is empowered by the Health Service Commissioners Act 1993 (as amended) ("the Act") to investigate complaints of "injustice or hardship" caused by NHS treatment[1]. The Act provides that in determining whether to initiate, continue or discontinue an investigation, the Ombudsman shall act in accordance with her own discretion[2]. The Ombudsman should not proceed with an investigation if a complainant has an alternative legal remedy open to them unless she is satisfied that in the particular circumstances it is not reasonable for the person to have resorted to it[3].
Background
The Claimants were two doctors who treated Mr P successively over a short period in June 2012 through an NHS GP surgery. Dr Howarth initially diagnosed a urinary tract infection and prescribed antibiotics to Mr P. Dr Miller, during a telephone conversation with Mr P's wife (Mrs P) two days later, stated that Mr P's condition could not be expected to have improved because the antibiotics he had been prescribed would take time to have an effect. Mr P died of undiagnosed peritonitis two days after Mrs P's conversation with Dr Miller.
Mrs P complained to the surgery about the treatment of Mr P and later in writing to the Ombudsman. She complained explicitly about Dr Howarth and stated that she did not blame Dr Miller as she was only acting on Dr Howarth's earlier medical notes. When the Ombudsman asked Mrs P in a later telephone conversation why she did not want Dr Miller to be investigated, she stated that on reflection she was happy for her performance to be investigated also. The Ombudsman decided that the scope of her investigation would include both Claimants' treatment of Mr P.
The Ombudsman's report of October 2014 found that Mr and Mrs P had suffered an injustice and Mrs P's complaint was upheld. The Ombudsman's report added that some aspects of each Claimants' treatment of Mr P fell so far below the General Medical Council's standards and guidance that they amounted to a service failure[4].
Judicial review claim
The Claimants rested their claim against the Ombudsman's investigatory procedure and findings on six wide-ranging grounds[5]. The Court dismissed each of these and decided, ultimately, that the Ombudsman had lawfully investigated and reached a judgement upon Mrs P's complaint. The most significant grounds of challenge, and the Court's discussion of and judgement on these, were as follows:
- Ground 1 of the Claimants' claim – Dr Miller contended that Mrs P had not in fact complained about her and the Ombudsman therefore had no jurisdiction to investigate the care that she provided to Mr P.
The Court recognised that Mrs P's initial letter of complaint to the Ombudsman criticised Dr Howarth's treatment alone but took the view that "more fundamentally" she had complained of the "treatment that failed to avoid [Mr P's] death"[6]. It would not, in the Court's view, be unreasonable to consider that Mrs P's letter of complaint did not seek to limit the scope of the Ombudsman's investigation, notwithstanding that she felt that the practitioner at fault was Dr Howarth and not Dr Miller. Further, the Court stated that the Ombudsman was entitled to reconsider the scope of the complaint and to determine whether or not she was investigating all the matters raised by the complaint; "the Ombudsman's remit is to investigate complaints about injustice. She has a wide discretion as to how to set about that". Mrs P's complaint could reasonably be read as covering the actions of both Claimants leading to the alleged injustice and the Ombudsman did not act unlawfully in deciding to investigate Dr Miller's performance as well as Dr Howarth's.
- Ground 4 – The Ombudsman had failed to apply the approach set out in a statement made publicly by the Ombudsman in 1995 which indicated that the Ombudsman would consider complaints according to the Bolam[7] test used in clinical negligence cases (whether the care provided fell below that which a reasonable doctor would have provided).
The Court established that the Act did not require the Ombudsman to adopt any particular standard of review. It cited Attwood v Health Service Commissioner[8], in which Burnett J considered that the concept of "injustice" does not "stick like glue to notions of illegality and loss in common law" and that when it created the Ombudsman and its enacting legislation, it was clear that Parliament did not intend to create a parallel jurisdiction to the Courts in which established legal concepts should be "read over". The Ombudsman's general remit entitled her to decide upon the standard of review she applied[9]. Further, the 1995 statement (which had, the Court agreed, in fact bound the Ombudsman in the Attwood case) had been surpassed by subsequent statements[10] made by the Ombudsman. These statements clarified that she would determine complaints according to "general standards of good administration and the specific standards governing the legal, policy and administrative framework and the professional standards relevant to the events in question"[11], and whether the complaints she investigated represented a departure from those standards so as to constitute a service failure. In identifying the relevant professional standards as being the GMC's guidance, the Ombudsman had applied the correct approach in accordance with her publicly available statements and had, accordingly, acted lawfully[12].
- Ground 5 – The Ombudsman was precluded from investigating the complaint because Mrs P had an alternative legal remedy available, namely a claim for damages, and/ or that the Ombudsman failed to properly consider this issue.
Mrs P sought an acknowledgment of the Claimants' failings, an apology and action to prevent recurrence; when asked by the Ombudsman whether she was seeking any compensation if the complaint was upheld, she replied that "it would help"[13].
The Court considered that the non-financial outcomes Mrs P was seeking were not available through legal action and the Ombudsman's investigation was not barred by s.4 of the Act[14]. This was despite Mrs P's reference to financial compensation in her telephone conversation with the Ombudsman (this did not amount, in the Court's view, to a request for financial compensation) and an earlier reference she had made in her complaint to the Claimants' clinic to having sought a solicitor's advice and having a good case for negligence; these factors had to be seen "in the context of a person who was seeking an explanation for her husband's death, not a person seeking to pursue a claim for damages for clinical negligence" and in view of the wider non-financial outcomes Mrs P pursued which could not be satisfied by a successful claim for negligence.
The Judgment reminds us of the relatively wide discretion afforded to the Ombudsman's investigations, and that the Court will often be slow to interfere where it is argued that a complainant has an alternative remedy available to them.
[1] See ss.2A and 3(1) (the "general remit") of the Act
[2] S. 3(2) of the Act
[3] S. 4 of the Act
[4] Paragraph 26 of the judgment
[5] Paragraph 2
[6] Paragraph 58
[7] Bolam v Friern Hospital Management Committee [1957] 1 WLR 382
[8] [2008] EWHC 2315 (paragraph 27)
[9] Paragraph 87
[10] Articulated in a report presented to Parliament in 2009 entitled, "Six Lives: the provision of public services to people with learning disabilities"
[11] Paragraph 89
[12] Paragraph 90
[13] Paragraph 13
[14] Paragraph 95