This was an application for judicial review of a report of the Health Service Commissioner (“the Ombudsman”) into complaints surrounding the treatment of a patient who died in January 2002. The Claimant was a doctor who treated the deceased and who was severely criticised in the report. He challenged the report on two bases. First, he contends that the Ombudsman misdirected herself in law because she failed to apply the Bolam test to questions arising out of the clinical decisions he made concerning the deceased’s treatment and management. Secondly, he mad a series of discrete points directed to the detail of the report, the findings made and conclusions reached in the report.

Burnett J. held that:

 
1. the language of section 3(1) of the Health Service Commissioners Act 1993 as amended does not dictate that the Bolam test should be applied by the Ombudsman to questions of clinical judgment;
 
2. however, the test for “failure of service” under section 3(1) as publicly articulated by the Ombudsman (namely whether the service provided by the trust “fell below a standard which the patient could reasonably have expected in the circumstances”) was in fact the Bolam test in all but name and therefore that the Ombudsman had failed to apply her own test.

The learned Judge also made observations about the standard of reasoning required in an Ombudsman’s report.

James Maurici appeared for the Health Service Commissioner instructed by Beachcroft LLP.

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