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High Court gives judgment in significant Health Service Ombudsman case

DATE: 22 Oct 2015

The Administrative Court (Lewis J) has today handed down judgment in Miller and Howarth v Parliamentary and Health Service Ombudsman [2015] EWHC 2981 (Admin), an important case concerning the scope and operation of the Health Service Ombudsman’s power to investigate complaints about clinical judgment.

The Claimants are GPs. The case concerned the care they provided to a patient, Mr Pollard, who died as a result of undiagnosed diverticular disease. Mr Pollard’s widow complained to the Ombudsman about the standard of the care provided to her late husband. The Ombudsman upheld Mrs Pollard’s complaint, finding that the claimants’ care amounted to service failure, and that had Mr Pollard received appropriate care his death probably would have been avoided.

The claimants advanced six grounds of challenge to the Ombudsman’s decision:

First, the first Claimant, Dr Miller, contends that Mrs Pollard had not in fact complained about her and the Ombudsman had no jurisdiction to investigate the care that she provided on 15 June 2012. Secondly, the Claimants contend that the process adopted by the Ombudsman was procedurally unfair for a number of reasons. Thirdly, they contend that the Ombudsman had predetermined the issues before considering their submissions and evidence. Fourthly, they contend that the Ombudsman failed to apply the approach set out in a statement made publicly by the Ombudsman in 1995 which indicated that the Ombudsman would consider whether the care provided fell below that which a reasonable doctor would have provided. Instead, they contend that the Ombudsman adopted a standard of review which was so unclear as to be unlawful. Fifthly, they contend that the Ombudsman failed properly to consider whether there was an alternative legal remedy which should have been used by Mrs Pollard, namely a civil action for damages for negligence. Finally, they contend that it was wrong or unlawful for the Ombudsman to have recommended payment of compensation where the level of compensation reflected that available in court actions.  

On the first ground of appeal, Lewis J confirmed the breadth of the Ombudsman’s discretion (para 59):

“The Ombudsman’s remit is to investigate complaints about injustice. She has a wide discretion as to how to set about that. If, having decided to investigate and whilst in the process of defining the scope of the investigation, the Ombudsman wishes to reconsider the scope of the complaint and, indeed, to seek clarification from the complainant as to the matters encompassed within that complaint, she is entitled to do so.” 

On the issue of the standard of review, Lewis J found that the Ombudsman is not required to apply the test used in clinical negligence cases (para 87):

“The Ombudsman is entitled to consider whether injustice or hardship has arisen from action amounting to maladministration, failure in the provision of a service or failure to provide a service. It is a matter for the Ombudsman to decide what standard she is applying. She is not obliged, as a matter of statutory construction, to adopt the Bolam test.” 

The judge went on to find that the standard actually applied in the present case was both publicly promulgated and properly applied (para 92):

“The standard applied, the reasoning and the conclusion reached are clear. The exercise involved a judgement by the Ombudsman. That is inherent in the exercise of deciding whether injustice has been suffered as a result of action taken in relation to matters involving clinical judgement. The Ombudsman had to assess whether the action taken did meet the requirements for making an adequate assessment. There is nothing unlawful in relation to the way in which the Ombudsman approached the exercise. This ground of challenge is not made out.” 

The Court dismissed all six of the grounds of challenge.

A copy of the judgment is available here.

James Maurici QC and Luke Wilcox appeared for the Health Service Ombudsman, instructed by Browne Jacobson.