Cavanagh & Ors v Health Service Commissioner

All three members of the court have contributed to the judgment which follows.

These are three conjoined appeals from the judgment of Henriques J [2004] EWHC 1847 (Admin) dismissing, save in two relatively minor respects, a series of challenges by way of judicial review to the Report of the Health Services Commissioner on a complaint made to her by the third-named appellant, Frank Redmond.

Mr Redmond is the father of Tess Redmond, who has since infancy suffered from epilepsy and learning and communication difficulties. Tess is now 13 years old. She has been cared for with great devotion by both her parents. She was also, from the early part of 1995, under the professional care of Dr Cavanagh, a consultant paediatric neurologist at the Chelsea and Westminster Hospital. In August 1995, at Mrs Redmond’s request, Dr Cavanagh referred Tess to Dr Bhatt, the specialist in charge of the B12 unit, which, although located in the same hospital, was charitably funded and not maintained by the hospital trust. Dr Bhatt made a diagnosis of vitamin B12 deficiency, and Tess was started on a course of injections which in her parents’ view had a tangible beneficial effect.

In December 1995 the B12 unit was closed down by the Trust because of doubts about the integrity of its management. The Institute of Child Health, which was asked to report, concluded that the Trust had been right to intervene. An independent external inquiry, however, concluded that the unit’s pioneering work had been vital and must not be lost. It also spoke of Dr Bhatt as “the only British expert whose dedication and reliability for sound opinion are internationally acknowledged”.

Because the Trust had already, by the time of closure, forbidden consultants to refer patients to the B12 unit, Tess went untreated apart from some therapy given voluntarily thereafter by Dr Bhatt. Her parents complained in May 1996 to the then Health Services Commissioner, Sir Michael Buckley, who urged cooperation in resolving the problem. But nothing satisfactory eventuated, and Mr Redmond on 24 May 2001 made the complaint against the Westminster and Chelsea Healthcare NHS Trust which lies at the source of the present proceedings.

The complaint to the Health Services Commissioner (better known as the Health Service Ombudsman) was that no satisfactory arrangements had been made by the Trust since the Commissioner’s previous investigation for monitoring and treating Tess for her vitamin B12 disorder.

The Commissioner in substance rejected the complaint. She found that the shortcomings in Tess’s treatment, while in principle the Trust’s responsibility, were in practice the combined fault of Dr Cavanagh and Dr Bhatt. She based this view principally on two reports bespoken by her and annexed to her own report. One came from two paediatric consultants specialising respectively in metabolic medicine and neurology; the other came from two consultant paediatric haematologists. Both reports were damning in their judgment of the professional competence of the two doctors who had been treating Tess. It will be necessary to come in more detail to all three reports later in this judgment.

Mr Redmond was distressed that his complaint against the Trust for not taking proper care of Tess had been turned into an indictment of two doctors against whom he had no complaint at all. He wrote a letter in response to the draft Report pointing out that the investigation had gone beyond his complaint and indicating that he would have withdrawn it had he known what the scope of the investigation was going to be. The two doctors, now facing professional disgrace, were similarly disturbed. All three sought judicial review of the Commissioner’s findings, and it was their joint applications which Henriques J tried. The grounds fell under three main heads: that the inquiry had exceeded the Commissioner’s powers; that it had been conducted unfairly; and that some of its conclusions were untenable. Henriques J rejected the first two in their entirety. In relation to the third he held that two of the Commissioner’s findings against Dr Cavanagh did not stand up, but apart from quashing these he dismissed the applications.

Both doctors were given permission to appeal on the papers by one member of this court, Sedley LJ. He refused Mr Redmond permission, taking the view that his interests were adequately secured by his standing as an interested party, but on renewal Chadwick and Clarke LJJ granted it. Broadly the same arguments were advanced by all three appellants as were advanced below. The Commissioner did not seek to cross-appeal on the findings made against her.

If the first argument – that the inquiry went beyond the Commissioner’s powers – was correct, it was common ground before us that the Commissioner’s report could not stand. We accordingly invited counsel to deal with this ground of appeal as a preliminary issue. Having heard full argument upon it, we announced in open court our conclusion that the content of the report exceeded the Commissioner’s statutory powers, not marginally or severably but substantially. It followed that the other, equally troubling questions in the joint appeals became both contingent and academic and did not arise for determination. We reserved our reasons and stood over questions of consequential relief until delivery of judgment.

The Health Service Commissioner for England, who at present is Ms Ann Abraham, derives her powers and functions from the Health Service Commissioners Act 1993 as amended. Ms Abraham is also the Parliamentary Commissioner for Administration. Her establishment is a substantial one, consisting of about 70 staff with a director of clinical advice and 17 clinician advisers.

The provisions of the 1993 Act material to the present issue are these:

The reference in s.3(1) to “a complaint duly made” relates to s.9, which allows a complaint to be made by a member of the family of a patient who cannot act for himself or herself, and which sets in principle a time limit of a year for making it. Mr Redmond’s complaint was in substance a complaint under s.3(1)(b) of a failure by the Trust to provide a service which it was its function to provide.

In relation to the Commissioner’s procedure, s.11 provides:

The general inhibition on the Commissioner’s embarking on matters of clinical judgment which was contained in s.5 of the 1993 Act was repealed by the Health Service Commissioners (Amendment) Act 1996, taking effect (Footnote: ¹) before the receipt by the previous Commissioner of Mr Redmond’s first complaint. It is also material to the present question that s.15 as amended includes the following provision:

Certain clear propositions emerge from the legislation. First, the Commissioner’s functions are limited to the investigation of complaints: she has no power of investigation at large. Secondly, the statutory discretions which she possesses, while generous, go to (a) whether she should embark upon or continue an investigation into a complaint (s.3(2)) and (b) how an investigation is to be conducted (s.11(3)). They do not enable her to expand the ambit of a complaint beyond what it contains, nor to expand her investigation of it beyond what the complaint warrants. This legislative policy is emphasised by the distinction contained in s.11 between persons “by reference to whose action the complaint is made” and who are automatically entitled to respond, and others who may become implicated but who enjoy no such automatic right. In the present case, one consequence of this scheme was that, although they were interviewed in the course of the investigation, the first the two doctors knew of the full criticism they were facing was when they were sent the draft Report for the purpose only of proposing factual adjustments to it.

This does not mean that the ambit of every complaint or the scope of every inquiry is a question of law: it is for the Commissioner not only to decide what constitutes a discrete complaint but to decide what questions it raises and to investigate them to the extent she judges right. But there are legal limits. One may well be (though we did not need to hear full argument on it) that if she does not elect to discontinue an investigation she cannot truncate it. Another is that how she investigates a complaint is subject not only to the express requirement of notice to those directly implicated (s.11(1)) but to the common law’s requirements of fairness in so far as the statute itself does not restrict them. A third, central to these appeals, is that a point may come at which the pursuit of an investigation goes beyond any admissible view either of the complaint or of what the statutory purpose of investigation will accommodate.

We consider that our characterisation of the statutory powers and discretions is in line with what was said by this court in R v Parliamentary Commissioner for Administration, ex parte Dyer [1994] 1 WLR 621, 626E-G. For the Commissioner, Natalie Lieven seeks to add to it what Sedley J (as he then was) said in R v Parliamentary Commissioner for Adminsitration, ex parte Balchin (unreported, 25 October 1996) – that the Parliamentary Commissioner “as an investigator … is not limited to the strict terms of the issue posed by the complaint”. This was said in relation to a factor (the intransigent attitude of a county council to the payment of compensation) which was directly raised by the complaint against central government over which alone the Parliamentary Commissioner had jurisdiction, and the factuality of which had been established by him. The point being made was that it was not necessary for him to have jurisdiction to inquire into the county council’s behaviour in order to take it into account. Insofar as the dictum may be thought to go any wider, it should be regarded as going no further than what is said in the previous paragraph of this judgment. It has also to be read in the light of what Auld LJ said in R v Northern and Yorkshire RHA, ex parte Trivedi [1995] 1 WLR 961, 971, albeit about a more confrontational disciplinary process:

“The fact that the process is investigative and inquisitorial rather than a form of litigation between the parties …. does not mean that the medical service committee or the authority is entitled to investigate and make findings on matters not the subject of complaint.”

The Report which is the subject of the present challenge came at the conclusion of an investigation of wide scope. At the start of the investigation the Commissioner’s director of clinical advice advised that two external professional advisers (EPAs) with expertise in vitamin B12 disorders should be appointed. Accordingly two consultant haematologists (one practising, one retired) were appointed. The director of clinical advice also advised that two external paediatricians should be appointed to advise on the investigation itself. Accordingly a consultant in paediatric metabolic medicine and an honorary professor of paediatric neurology were appointed. No question arises about either the standing or the impartiality of any of these specialists.

What does arise is the remit they were respectively given. This can be discerned from the terms of their reports, both of which were appended to the Commissioner’s; but at our request Ms Lieven has produced the letters of instruction. They were sent on behalf of the previous Commissioner, and they include the following passages; the underlinings are ours:

These letters were not before Henriques J. We were provided with them at our request. They are of course extracted from a substantial correspondence file, and we have not asked for two of the documents apparently enclosed with the first pair of letters – a case analysis and a paper summarising the issues needing to be considered. Enough appears from the passages we have underlined to show how and why the investigation acquired its eventual scope.

Before we come to the terms of the Report itself, it is necessary to mention one of its outcomes. Both the doctors responsible for Tess’s diagnosis and treatment were referred by the Commissioner to the General Medical Council. This was done pursuant to the provisions of s.15 which we have set out above and which operate where the effect of information in the hands of the Commissioner is that a person is likely to constitute a threat to the health and safety of patients. On the day we sat to hear these appeals, each doctor received notification from the General Medical Council that its case examiners had decided that the matter which had been brought to the GMC’s attention should be concluded with no further action. Each letter of notification contains precise reasons for this conclusion.

The Report with its annexures runs to 74 pages, but it is sufficient for present purposes to set out – in full – the concluding section. The references to the second Chief Executive will be explained when, having set out the Commissioner’s findings, we turn to some elements of the evidence obtained by her. The references to the paediatric neurologist are to Dr Cavanagh; the references to Dr F are to Dr Bhatt. Professor O is a distinguished American paediatric neurologist, Dr Herbert.

“Findings

In the course of her investigation of Mr Redmond’s complaint the Commissioner had interviewed the chief executive of the Trust. The incumbent had changed during this process: hence the references to the second Chief Executive. This chief executive had responded in writing to the complaint in terms quoted by the Commissioner at paragraph 7 of the Report. He had written:

“The hub [sic] of Mr Redmond’s complaints concerns the fact that the Trust is prejudiced towards [Dr Bhatt] (who was once employed by the medical school and had an honorary contract with this Trust) who headed up the B12 Unit up until 1995. He has accused the Trust of forcing [Dr Cavanagh] (who is Miss Redmond’s consultant at the Chelsea and Westminster) to take responsibility for treatment in which he has no expertise. He also believes that the Cheslea and Westminster Hospital houses the necessary facilities to treat his daughter for her complex metabolic disorder.

….

It will be seen from the extensive correspondence that considerable effort has been made by the Trust to facilitate the treatment of Miss Redmond. The arrangement put in place in November 1999 was working well until April 2000 when [Dr Cavanagh] stated that he was not prepared to take responsibility for Miss Redmond’s overall care which includes B12 treatment. The position with regard to the overall responsibility of patient care has been explained to both Mr Redmond and [Dr Cavanagh]…”

The passage we have underlined demonstrates the limited range of the issue before the Commissioner. Neither the complaint against the Trust nor the Trust’s response had raised any question of clinical judgment or practice. The chief executive had sought to deal with the complaint on the same premise as Mr Redmond, namely that B12 therapy was what Tess needed. The Trust’s response to the complaint was that the hospital’s arrangements for treating Tess with B12, long postdating the closure of Dr Bhatt’s unit, had broken down over the allocation of professional responsibility for the treatment. The response corresponded with the case history set out at length in the first part of the Report.

The Commissioner went on, at paragraph 19, to report that she was advised that it was standard practice, though not a legal requirement, that in-patient medical care be undertaken under the specific responsibility of a named consultant. She noted GMC guidance which included an obligation resting on doctors to work within the limits of their own professional competence, and a retention of responsibility for management of the patient even where care or treatment is delegated.

It was only when the Trust’s response was followed up at interview that, according the Report, wider issues began to be raised:

“24.

At interview the second Chief Executive said that there were four key elements in the complaint. First, the Trust lacked a B12 facility after the closure of the B12 unit. The Board had decided in 1996, 1997 and 2001 that B12 treatment could not be safely provided within the Trust. Secondly, Mr and Mrs Redmond seemed committed to B12 treatment even though a link between B12 treatment and Miss Redmond’s seizures remained unproven: the Trust’s Medical director had told the Second Chief Executive that he continued to have doubts about the validity of B12 treatment.”

The underlining is ours.

Now it is perfectly correct, as Ms Lieven has stressed, that the complaint had made the explicit assumption that B12 treatment was indicated for Tess. In the light of the entire history of her treatment at the hospital, this is hardly surprising: everybody had taken it to be the case. What the Trust’s chief executive is summarised as having said at interview was not a challenge to the diagnosis. But when, as recorded in paragraph 34, the Trust’s medical director gave evidence to the Commissioner, he did question whether there was adequate test evidence to support the diagnosis of an abnormality in Tess’s B12 metabolism. The Commissioner thus had the medical director’s doubt about the diagnosis on the one hand, and on the other Mr and Mrs Redmond’s evidence that the B12 therapy worked. Nothing in the complaint required her to choose between these. Both the complaint and the response proceeded on the premise that B12 therapy was indicated.

The two consultant haematologists, instructed by means of the first pair of letters reported to the Commissioner that Tess’s B12 status was recorded as normal, and that they could “see no clinical laboratory basis for Mr Redmond’s complaint concerning administration of vitamin B12 to his daughter.” They criticised Dr Bhatt for “recommending vitamin B12 therapy for Miss Redmond without any laboratory evidence to warrant this therapy” and recommended that:

“(i)

the Trust should obtain an external review of Miss Redmond’s medical condition;

(ii)

the Trust should consider an external review of the operation of [Dr Cavanagh’s] team;

(iii)

a referral of [Dr Bhatt] to the GMC should be considered.”

The two assessors subsequently appointed to advise on the investigation also concluded that there was “no evidence that Miss Redmond ever suffered from a disorder of vitamin B12 metabolism or from vitamin B12 deficiency”. They considered that the clinical history suggested an incompletely penetrant gene. Their remaining conclusions were these:

“(3)

It is unacceptable for there to be a continued insistence that only [Dr Bhatt] or a ‘B12 expert’ outside this country can look after Miss Redmond as there are acknowledged B12 experts in the UK; and

(4)

GOSH [Great Ormond Street Hospital] has expressed a willingness to reassess and to treat Miss Redmond, and that hospital has internationally recognised staff who are capable of doing so. We recommend this course of action.”

Henriques J accepted Ms Lieven’s submission that this had remained throughout “an investigation into the arrangements for monitoring and treating Tess for her vitamin B12 disorder” But, he went on to say, “in order for an illness, condition or disorder to be properly treated it must be accurately diagnosed.” Here “there was no proof sufficient to satisfy the assessors that Tess had a disorder of vitamin B12 metabolism.” The judge concluded therefore that the investigation of the diagnosis had lain within the scope of the investigation.

This analysis is criticised by John Grace QC for Dr Bhatt and Jenni Richards for Mr Redmond, Neil Garnham QC adopting their arguments, on the ground that it conflates the history of Tess’s treatment with the product of the Commissioner’s much larger investigation and reads back into what was at all material times an agreed need for B12 therapy a contest, raised for the first time in the course of the investigation, as to the medical need for it. For this reason, they submit, the report went substantively beyond the complaint and did unwarranted harm in so doing.

Ms Lieven points out the width of the Commissioner’s discretionary powers of investigation, which do not replicate the conduct of litigation in any meaningful way; the deliberate opening up to her remit of clinical issues; and her entitlement to follow and resolve any issue so far as she judges appropriate. She supports the judge’s conclusion that, since the complaint was overtly predicated on the B12 diagnosis, it was well within the Commissioner’s remit to examine the soundness of that diagnosis and to form a view about it.

It will be recalled that the Findings section of the Report (§50) begins:

“This investigation has been into the arrangements for monitoring and treating Miss Redmond.”

But as is evident from the rest of the findings, the investigation, which no doubt ought to have been as the Commissioner described it, had become an investigation into the clinical justification for these arrangements, and thence into the professional standards and conduct of the two doctors responsible for them.

The Commissioner embarks on this road by adopting, in paragraph 51, the addition to the Trust’s written answer given in oral evidence by its chief executive and medical director: that there were “four main elements” to Mr Redmond’s complaint. The first of these, the closure of the B12 Unit (which Mr Redmond was not complaining about), the Commissioner treats as a matter for the Trust’s judgment and so as simply a historical fact. Nothing therefore turns on it. The B12 diagnosis, however, is treated differently. What follows, from paragraph 52 to paragraph 57, is a major excursion into the empirical evidence for the diagnosis, a finding that the diagnosis was unwarranted and a series of adverse findings about Dr Bhatt’s professional competence. It is followed at paragraphs 58 to 59 by a sustained criticism of Dr Cavanagh for his role in supporting Dr Bhatt. Not until paragraph 61 does the Commissioner turn to the subject of Mr Redmond’s complaint - the Trust’s role in providing treatment. That her critique of the Trust is so low-key as to be barely audible is a function of the heavy critique of the two doctors which has preceded it.

We note in particular the following:

In our judgment this Report went beyond the Commissioner’s powers. We have set out, in paragraphs 17 to 19 above, what we hold to be the nature, extent and limits of these powers. We accept unhesitatingly that a complainant cannot determine or artificially limit the scope of an investigation by the way he frames his complaint. Thus a complaint that a Trust has failed to provide a particular course of treatment can be dealt with in a proper case by a finding that the treatment would not have been appropriate, or simply that the Trust was entitled to consider it inappropriate. But whether such a finding is open to the Commissioner will depend in the first instance on what the Trust says when, pursuant to s.11(1), it is given notice of the complaint. If it accepts that the treatment was indicated but has an explanation of why it was not provided, that is what the Commissioner must hear out and report on – not because the complaint and response have to be treated, like pleadings, as limiting the issues, but because the complaint is made out insofar as the need for the particular treatment is admitted. If, on the other hand, it is denied by the Trust, clinical issues are likely to arise, and if they do, there is nothing in the Commissioner’s statutory remit to stop her investigating them. Relevance, in other words, is everything.

If in the course of a lawful investigation matters come to the Commissioner’s notice which may affect the health and safety of patients, she has an express power, which in clear cases will become a duty, to report what she has learned to an appropriate authority, whether it be the police, social services or one of the professional disciplinary bodies. But the existence of this important power does not enlarge the Commissioner’s remit so as to entitle her to investigate matters which would otherwise lie beyond it. It is designed to enable her, without breaking her duties of confidence, to alert the appropriate authorities to things which she encounters within her remit.

We consider that the question how vitamin B12 therapy came to be prescribed and administered in Tess’s case lay outside both Mr Redmond’s complaint and the Trust’s response to it. The fact that in the course of giving oral evidence in private two of the Trust’s senior personnel chose to call the diagnosis in question did not, in our judgment, make it an issue which the Commissioner was either required or empowered to resolve. To point to how it ramified and cast a long shadow over two professional careers is not simply to deploy the wisdom of hindsight: it was visible that the investigation, if it did not restrain itself, was embarking on a fraught series of questions of professional competence and doing it, moreover, over the heads of the two practitioners most nearly affected because they had never been the object of a complaint and so had no right to notice. This is not simply an issue of fair procedure (which, had the appellants failed on the present issue, would have arisen on the second limb of the case). It is an indicator of why, in the statutory scheme, the Commissioner is required to focus on the complaint. She does not have to take its assertions or assumptions as given, but how she deals with them has to depend on what is said in answer to them.

If the Trust’s answer to Mr Redmond’s complaint had been that it had not made the arrangements he wanted because it doubted the validity of the B12 diagnosis, it would even then have been necessary for the Commissioner to decide whether the doubts, right or wrong, were simply a fact which entitled the Trust to withdraw the arrangements in question, or whether it was appropriate for her to adjudicate on the justification for them. But that was not this case, because until the matter was under investigation by the Commissioner neither the diagnosis nor therefore the need for B12 treatment had ever been questioned. What the Commissioner elicited showed that, with hindsight, there might have been such doubts. But they had had nothing to do with the discontinuance of the B12 therapy, and the Trust did not suggest that they had.

It might well be that the doubts now cast on the diagnosis had a bearing on what the Commissioner might recommend by way of resolution of the dispute, but that did not require investigation and findings of the breath and depth of these. It would have been enough to observe the doubts and recommend a reassessment.

We do not, however, accept Ms Lieven’s submission that this was all the Commissioner was doing. The reporting of the two doctors to the GMC could not possibly have resulted from such an exercise. Such findings as that it was “essential that Miss Redmond is thoroughly reassessed and her treatment put on a new footing” are an unequivocal rejection of the B12 diagnosis. Shorn of its forcefully expressed findings on the clinical issues, notably but not exclusively those in paragraphs 53 and 55, the Report would have contained no sufficient basis for invoking s.15.

We note, lastly, that when in 1996 (following the enlargement of his remit to include clinical questions) the Commissioner dealt with Mr Redmond’s first complaint, which concerned the failure of the Trust to tell him that the B12 Unit had been closed or to arrange alternative therapy for Tess promptly, the penultimate paragraph of his report mentioned that clinical considerations about Tess’s treatment had been among the matters canvassed with him. “But,” he wrote, “my responsibility is solely to investigate the matters stated in [the complaint]; and my findings are confined to these matters. The other issues to which I have referred are largely outside my jurisdiction…” With the substitution of ‘powers’ for ‘jurisdiction’, we think this was the right approach in law.

These are the reasons why we have concluded that the Report on Mr Redmond’s complaint against the Trust exceeded the Commissioner’s statutory powers, not technically or marginally but so substantially as to vitiate it in its entirety. We will hear the parties, on delivery of this judgment, on what consequences should follow.