Miller & Anor v The Health Service Commissioner for England

This is an appeal against the order of Lewis J made on 22 October 2015 in the Administrative Court dismissing a claim for judicial review. The appellants who are registered medical practitioners had applied for judicial review of a decision of the Health Service Commissioner for England [the ombudsman]. The ombudsman had made a decision upholding a complaint made in June 2012 by Mrs Pollard about the medical treatment provided to her late husband, Mr Pollard, and found that his subsequent death would have been avoided had he received appropriate care in June 2012.

There is a detailed summary of the facts in the judgment of Lewis J which is reported at [2015] EWHC 2981 (Admin) which I gratefully adopt. In the following paragraphs I identify only those facts that are necessary to understand the issues in this appeal.

The appellants are GPs. At the material time they both worked at a practice in Chichester [the practice].

On 13 June 2012 Mrs Pollard contacted the practice requesting a home visit for Mr Pollard who had been unwell and complaining of abdominal pain and being unable to pass urine. Dr Howarth attended the home of Mr and Mrs Pollard, carried out an examination of Mr Pollard, diagnosed a urinary tract infection and prescribed antibiotics.

On 15 June 2012 Mrs Pollard contacted the practice and spoke to Dr Miller, because her husband’s condition had not improved despite him taking the prescribed course of antibiotics. Dr Miller advised Mrs Pollard to continue with the course of antibiotics as they had not had enough time to take effect.

Mr Pollard’s condition continued to deteriorate and on 17 June 2012 he sadly died as a result of a burst colonic abscess secondary to undiagnosed diverticular disease.

The appeal to this court concerns the procedural fairness and lawfulness of the decisions of the ombudsman in her investigation and determination of Mrs Pollard’s complaints against the doctors.

On 3 August 2012 Mrs Pollard made a complaint to the practice and at around the same time to the General Medical Council [the GMC]. On 4 September 2012 she made a complaint to the ombudsman. The complaint was at that time directed at and limited to the care provided by Dr Howarth. She said at that time that “I do not blame Dr Miller at all”. It is clear from the evidence that Mrs Pollard had by then consulted a solicitor about the merits of a claim in clinical negligence.

On 13 August 2012 the ombudsman wrote to the practice informing them of the complaint and the practice responded by sending copies of relevant medical records. The only information provided by the ombudsman was that the complaint was “in reference to the treatment her late husband received from Dr Howarth during a home visit on 13 June 2012” and that the ombudsman intended to “take a closer look at the complaint”. At no time during the ombudsman’s process was Mrs Pollard’s complaint to the ombudsman disclosed to either of the doctors or the practice: that only occurred six months after the issue of the judicial review claim.

The GMC subsequently confirmed to Dr Miller that she was not the subject of a complaint to them and on 4 October 2012, after conducting their own investigation, concluded that no further action should be taken in respect of the complaint against Dr Howarth. Mrs Pollard did not pursue negligence proceedings against either doctor.

On 8 November 2012 an officer in the ombudsman’s office known as ‘the assessor’ considered the complaint with a view to establishing whether or not an investigation should be undertaken. The assessor sought clinical advice from one of the ombudsman’s clinical advisors which was received on 22 November 2012. She then completed an assessment form on 29 November 2012 recommending that the complaint be accepted for investigation. On 7 December 2012 the complaint was considered by an assessment panel of senior officers in the ombudsman’s office who accepted in principle that it was reasonable to investigate the same.

On 12 December 2012 the ombudsman wrote separately to Dr Howarth and to the practice but not to Dr Miller. The letter asked for initial comments on the proposal to investigate the complaint which it should be recollected had not yet been disclosed. The letter did not disclose the completed assessment or the clinical advice that had been obtained.

A telephone conversation subsequently took place on 19 December 2012 between the practice manager and the ombudsman’s office in which a representative of the ombudsman advised the practice “that they would not expect anything further at this stage but had a legal obligation to ask this question”. In fact by that stage the ombudsman’s office had taken the steps I have described in paragraph [11] above and in particular had made a decision to investigate without informing the doctors or the practice of the steps they had taken or the material or reasoning upon which they relied.

In response, on 19 December 2012, the practice wrote to the ombudsman stating that the complaint had been discussed with Dr Howarth and “we feel there are no further comments to add at this point”. By then the ombudsman had written again on 18 December 2012 to inform the practice and Dr Howarth but not Dr Miller that an identified investigator had been allocated.

On 14 January 2013 an official in the ombudsman’s office known as ‘the investigator’ telephoned Mrs Pollard to discuss the scope of the investigation and next steps. Mrs Pollard indicated that while she had not initially complained about Dr Miller “on reflection she thought that if the second doctor had come out and seen him the course of events might have been different”. She confirmed that she was happy for advice to be obtained about the care provided on both dates (that is the 13 June 2012, when Mr Pollard was seen by Dr Howarth, and the 15 June 2012, when Mrs Pollard spoke to Dr Miller). She also confirmed that what she was looking for was “an acknowledgement of failings, an apology and action taken to prevent a recurrence”. She was asked by the investigator whether she was seeking financial compensation and she said that “it would help”. This was both a new complaint against Dr Miller and a new expression of the remedies sought by Mrs Pollard, the latter of which was relevant to the statutory functions of the ombudsman.

On 17 January 2013 a planning meeting was held between a representative of the investigator and other relevant officers of the ombudsman (not including the assessor or any member of the assessment panel) at which the scope of the investigation was determined.

On 18 January 2013 the investigator wrote to the practice to advise them of the scope of the investigation and to explain how the investigation would be carried out. A letter to Dr Howarth of the same date was attached. Near identical letters were sent to the practice and to Dr Miller on 25 January 2013. It should be noted that the letter of 25 January 2013 was the first notification to Dr Miller that a complaint about her had been made or that it was being investigated by the ombudsman. The appellants were given an opportunity to comment early on in the investigation or to await the provisional report and comment upon that. The investigation was described as being into “Mrs Pollard’s complaint that the Practice provided unacceptable care to Mr Pollard in June 2012”.

The appellants at that stage did not have details of the original or enlarged complaint nor did they have the assessment or the clinical advice relied upon. On 29 January 2013 the practice responded, stating that full information had been sent and that there was “nothing further we can add”.

On 30 January 2013 the investigator sought detailed clinical advice from one of the ombudsman’s specialist general practice advisers [the GP Adviser]. That advice was received on 28 February 2013. On 18 March 2013 the investigator sought further detailed clinical advice from a consultant colorectal surgeon [the Surgical Adviser]. That advice was received on 8 May 2013. Neither of the advices was disclosed to the appellants until after the ombudsman’s draft report was delivered.

On 17 October 2013 the investigator delivered a draft report [the Draft Report], to Drs Howarth and Miller on the same day. The letter accompanying the Draft Report referred to the report being in “draft” and containing “provisional conclusions and the recommendations that the Ombudsman is minded to make”. The Draft Report made reference to the advice of the GP and Surgical Advisers and set out such of their advice as the investigator relied upon. The Draft Report set out in clear and emphatic terms a series of conclusions and recommendations which included that the complaint be upheld, that there should be an acknowledgement of the identified failings, an apology for the consequential injustice and compensation for the distress caused. I have annexed to this judgment extracts of the language used in that report.

Upon receipt of the Draft Report the appellants consulted their medical defence organisations. On 12 November 2013 the ombudsman, in response to a request, provided to the Medical Protection Society (MPS) which by then was assisting Dr Howarth, copies of the clinical advice. This was also provided on 14 January 2014 to the Medical Defence Union (MDU) which was assisting Dr Miller, again in response to a request.

On 22 January 2014 the MPS submitted detailed comments on the Draft Report made by Dr Howarth, attached to which was a detailed expert’s report from a consultant general practitioner commissioned on behalf of Dr Howarth. On 28 January 2014 Dr Miller made detailed comments on the complaint and Draft Report and submitted an expert’s report from a professor of general practice. The appellants’ experts firmly disagreed with the advice that had been obtained from the ombudsman’s GP and Surgical Advisors. On 24 January 2014 a letter was also sent to the ombudsman from the MDU supporting Dr Miller’s position. On 30 January 2014 the practice commented on the complaint and Draft Report, asserting that the conduct of the appellants in June 2012 had been reasonable. That letter from the practice enclosed the comments of the appellants and the reports of their respective experts which supported them in all material particulars.

The investigator made further enquiries as a result of the responses received from and on behalf of the appellants and made some very limited revisions to the Draft Report. On 15 August 2014 the investigator wrote to the practice informing them that further enquiries had been undertaken and that a second draft report had been prepared which was attached. The nature and content of the further enquiries were not disclosed. Furthermore, the letter accompanying the second draft made it clear that it “constitutes our settled adjudication on this complaint”.

The ombudsman’s final report was issued on 1 October 2014 in the same terms as the second draft and substantially the same terms as the first draft. The conclusions and recommendations remained the same. The final report was accompanied by a letter warning that further action could be taken to ensure that the complainant received an appropriate remedy for injustice. As the ombudsman makes clear, such action can include sharing the report with clinical commissioners, regulators and registration bodies and Parliament.

The ombudsman is an office created by section 1 of the Health Service Commissioners Act 1993 [the 1993 Act]. The ombudsman’s purpose is to conduct investigations into the actions of bodies referred to in sections 2, 2A and 2B of the Act. By section 2A of the 1993 Act, the Appellants are subject to investigation by the ombudsman as ‘family health service providers’.

The remit of the ombudsman is, for present purposes, to investigate actions of family health services providers where a complaint is made of injustice or hardship occurring in consequence of such actions. Section 3(1A) of the 1993 Act provides that:

“(1A) Where a family health service provider has undertaken to provide any family health services and a complaint is duly made to the Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of—

(a)

action taken by the family health service provider in connection with the services,

(b)

action taken in connection with the services by a person employed by the family health service provider in respect of the services,

(c)

action taken in connection with the services by a person acting on behalf of the family health service provider in respect of the services, or

(d)

action taken in connection with the services by a person to whom the family health service provider has delegated any functions in respect of the services,

the Commissioner may, subject to the provisions of this Act, investigate the alleged action.”

The other material provisions of section 3 of the Act provide that:

“(2)

In determining whether to initiate, continue or discontinue an investigation under this Act, the Commissioner shall act in accordance with his own discretion.

(3)

Any question whether a complaint is duly made to the Commissioner shall be determined by him.

(4)

Nothing in this Act authorises or requires the Commissioner to question the merits of a decision taken without maladministration by a health service body in the exercise of a discretion vested in that body.

(5)

Nothing in this Act authorises or requires the Commissioner to question the merits of a decision taken without maladministration by—

(a)

a family health service provider,

(b)

a person employed by a family health service provider,

(c)

a person acting on behalf of a family health service provider, or

(d)

a person to whom a family health service provider has delegated any functions.

…

(7)

Subsections (4) to (6) do not apply to the merits of a decision to the extent that it was taken in consequence of the exercise of clinical judgment.”

Although the ombudsman’s primary function is to investigate maladministration, as set out above, that remit was specifically enlarged by Parliament by the amendments made to the 1993 Act in 1996. The ombudsman’s functions now include a power to investigate the merits of action taken by a medical practitioner in the exercise of his or her clinical judgment. Furthermore, the discretion whether to treat information as a complaint and whether to investigate that complaint are matters for the ombudsman.

The 1993 Act provides a qualified prohibition which guards against conflict and inconsistency where judicial or quasi-judicial remedies are otherwise reasonably available giving them a priority over the ombudsman. Section 4(1) of the 1993 Act provides that:

“(1)

The Commissioner shall not conduct an investigation in respect of action in relation to which the person aggrieved has or had—

(a)

a right of appeal, reference or review to or before a tribunal constituted by or under any enactment or by virtue of Her Majesty's prerogative, or

(b)

a remedy by way of proceedings in any court of law,

unless the Commissioner is satisfied that in the particular circumstances it is not reasonable to expect that person to resort or have resorted to it.”

The practical consequence is that if, when a complaint is made to the ombudsman, there are already existing or contemplated proceedings before the GMC or any other tribunal or court concerning the subject matter of the complaint, the ombudsman cannot investigate at least until the proceedings have concluded. Where such proceedings are concluded or are no longer contemplated the ombudsman has a duty to be satisfied before investigating the complaint that it was not reasonable for the complainant to have resorted to their alternative remedies.

The procedure in respect of an investigation is governed by section 11(1A) of the 1993 Act which provides, so far as material, that:

“(1A) Where the Commissioner proposes to conduct an investigation pursuant to a complaint under section 3(1A), he shall afford-

(a)

to the family health service provider, and

(b)

to any person by reference to whose action the complaint is made (if different from the family health service provider),

an opportunity to comment on any allegations contained in the complaint.

…

(2)

An investigation shall be conducted in private.

(3)

In other respects, the procedure for conducting an investigation shall be such as the Commissioner considers appropriate in the circumstances of the case, and in particular—

(a)

he may obtain information from such persons and in such manner, and make such inquiries, as he thinks fit, and

(b)

he may determine whether any person may be represented, by counsel or solicitor or otherwise, in the investigation.”

Section 14 of the 1993 Act deals with the reports that the ombudsman must, or may, make in respect of an investigation. The material provisions are as follows:

“(1)

In any case where the Commissioner conducts an investigation pursuant to a complaint under section 3(1) he shall send a report of the results of the investigation —

(a)

to the person who made the complaint,

(b)

to any member of the House of Commons who to the Commissioner's knowledge assisted in the making of the complaint (or if he is no longer a member to such other member as the Commissioner thinks appropriate),

(c)

to the health service body who at the time the report is made provides the service, or has the function, in relation to which the complaint was made, and

(d)

to any person who is alleged in the complaint to have taken or authorised the action complained of.

…

(3)

If after conducting an investigation it appears to the Commissioner that—

(a)

the person aggrieved has sustained such injustice or hardship as is mentioned in section 3(1), (1A) or (1C), and

(b)

the injustice or hardship has not been and will not be remedied,

he may if he thinks fit lay before each House of Parliament a special report on the case.

Lewis J dealt with the six issues that had been identified in the claim and found in favour of the ombudsman on each issue. It is convenient to deal with the issues in the appeal in the same way. The issues were broadly as follows:

Although the conclusions on issues 1 and 6 are not the subject of this appeal, the reasons can be summarised briefly. In relation to issue 1, Lewis J found that the complaint by Mrs Pollard could reasonably be interpreted as covering both doctors and the ombudsman was entitled to reconsider the scope of the investigation so as cover both. In relation to issue 6, Lewis J found that the 1993 Act entitled the ombudsman to recommend a payment of financial compensation calculated to reflect the loss resulting from injustice.

Although the question relating to the power to award financial compensation is not for this court, and is not as simple as it may at first appear, it ought to be said for the purpose of the discussion which follows that the ombudsman’s remedies are linked to her purposes and functions. The real complaint that underlies the original issue is whether a complainant who wants financial compensation should seek that as a remedy in legal proceedings unless it is unreasonable for the complainant to have resort to the same. As will become clear, that issue only serves to highlight the requirement on the ombudsman to make a reasoned decision on the question of whether there is an alternative remedy to which it is reasonable to expect the complainant to have recourse.

Lewis J held that there was no unfairness in the way the ombudsman conducted the investigation. The judge noted that the ombudsman is required by section 11(1A) of the 1993 Act to provide the subject of the investigation (ie the appellants) with “an opportunity to comment on any allegations contained in the complaint”. He concluded that the essential requirement 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 and held that the procedure adopted by the ombudsman was capable of complying with the requirements of procedural fairness.

In essence, the judge found that giving the appellants the opportunity of responding to the allegations by means of responding to the draft of a report containing provisional findings is capable of satisfying the requirements of procedural fairness. He noted that there is no statutory or common law requirement that the evidence and material on which the ombudsman relies be disclosed.

Save in three material respects, I agree with Lewis J. I differ in respect of that which I shall identify as poor practice in the field of administrative adjudication, which was sadly a feature of the process followed by the ombudsman’s officials, and the requirement on the ombudsman to provide an opportunity for the doctors to comment on the proposed investigation. I also disagree with the judge about the ombudsman’s purported decision about the availability of an alternative remedy which I shall discuss as part of issue 5. In the latter two respects the procedure followed was wrong to the extent that it was unlawful with the consequence that for the reasons which follow I would quash the decision to investigate the complaint.

What fairness requires in a particular situation depends upon the context. As Lord Mustill held in R v Home Secretary ex p Doody [1994] 1 AC 531 at 560:

“The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. An essential factor of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.”

The 1993 Act provides the legislative scheme for the Health Services Commissioner for England. The ombudsman is intended to be an informal means of dealing with complaints, and the process is inquisitorial and non-judicial. The legislative scheme makes the informality of the process clear. For example, section 11(3) of the 1993 Act provides that the procedure for investigations is that which the ombudsman considers appropriate in the circumstances of the case.

The courts have emphasised the wide discretion which the ombudsman has over her investigative procedures. For example, Simon Brown LJ held in R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621 at 626 that:

“[t]he intended width of these discretions is made strikingly clear by the legislature”

As the ombudsman notes, that case concerned the materially identical provisions in the Parliamentary Commissioner Act 1967.

In that context, what are the standards of fairness to which the ombudsman must adhere? First, section 11(1A) of the 1993 Act provides that the ombudsman must give the person concerned the opportunity to comment on the allegations contained in the complaint before deciding to conduct an investigation. Second, the common law imports a duty of fairness. In light of the statutory context, the conclusion of Lewis J at [63] in the court below seems to me to be a correct statement of what fairness requires:

“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.”

The use of the phrase ‘gist of the allegations’ should not be seen to obscure a fundamental right accorded to the person affected by the common law rules of natural justice, namely “to have afforded to him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it” per Lord Dyson JSC in In re application for Judicial Review by J17 [2010] UKSC 27 at [50]. Decision making bodies whether administrative or adjudicative in character should not consider relevant material (supportive or adverse to their case) without giving the affected person the right to comment upon it (see, for example: Wiseman v Boardman [1971] AC 297 per Lord Morris at 309, R v London Borough of Camden ex p Paddock [1995] COD 130 per Sedley J and R v Chelsea College of Art & Design ex p Nash [2000] ELR 686 per Elias J at [46]).

Furthermore, the plain language of section 11(1A) requires the ombudsman to obtain the relevant person’s comments about the allegations in a complaint in the context of a proposal to investigate ie before a decision to investigate is made. That is a protection which relates at least in part to the precedence given to legal and tribunal proceedings. Were it otherwise, the opportunity to raise the qualified prohibition would have no effect until the provisional findings and recommendations of an investigation were delivered. By then, as can be seen in this case, the functions of the ombudsman are nearly complete. The ombudsman’s own investigator accepts that this is the construction of section 11 that the ombudsman relies upon; she said as much in her letters to the doctors.

In this case the section 11 duty was breached. By the time the relevant letter was written to Dr Howarth the purported decision had been made and no decision was ever made after the letter that was written to Dr Miller. The protection contained in section 11 is not a mere technicality. In any event, the breach was not remedied before the investigation was conducted with the consequence that the purported decision to investigate was unlawful.

I agree with Lewis J that by the time the Draft Report was disclosed (but not before) the allegations were made out in sufficient detail to permit meaningful and focused responses and that the opportunity to make those responses was permitted in full ie to reply with expert evidence and with the benefit of assistance from medical defence organisations. Although the practice adopted could and should have been better, the context within which fairness is to be judged, namely the ombudsman’s statutory purpose and the fact that serious criticism of the appellants’ professional practice might ruin their reputation, professional standing and ability to earn a livelihood, was capable of being provided for in the procedure adopted by the ombudsman.

The ombudsman submits that it is not necessary to see the actual letter of complaint but rather that the “ombudsman’s formulation of the complaint she proposes to investigate” will suffice. I agree that it is necessary for the allegations to be set out with the particularity with which the ombudsman intends to investigate them with the corollary that the particularity must be sufficient for them to be answered in a meaningful and focused way. I do not agree with the implication of the ombudsman’s submission that the ombudsman is entitled to re-craft the complaint. The ombudsman has no general power to investigate what she wants or to expand the complaint beyond its content: Cavanagh & Ors v Health Serviced Commissioner [2005] EWCA Civ 1578 at [16-18] and [38-39]. It would be better practice simply to disclose the complaint that has been made and identify that which is to be investigated. In this case, the lack of disclosure of the complaint letter or sufficient particulars of the allegations to accord with the duty of fairness was not remedied until the Draft Report was delivered to the doctors by the ombudsman.

There is no requirement that the appellants be provided with all the evidence that the ombudsman has considered. The procedure is an inquisitorial process, not an adversarial one, and the ombudsman’s purpose and process should not be confused with that of the civil courts. The appellants submit that it was unfair that they were provided with the clinical evidence only after the Draft Report was published. Two answers were given to that submission. First, albeit late and only after a formal request from their representatives, the appellants in fact received the decisive clinical evidence with the consequence that there was no prejudice. Second, and more fundamentally, there is no requirement that the appellants receive the full medical evidence.

I am firmly of the view that although there is no procedural requirement that there be disclosure of the entirety of the evidence which the ombudsman obtains, the appellants must be able to respond to the allegations and in this case that necessitated disclosure of the medical evidence upon which the ombudsman relied coincident with the delivery of the Draft Report. Furthermore, although there is no necessity for there to be general disclosure the ombudsman must be alive to the imperative that she must also disclose evidence that tends to exonerate the appellants. In the context of the submissions on pre-determination and the very firm submissions of the ombudsman that she had no obligation to disclose the material obtained after the Draft Report, because in her opinion it added nothing to that contained in the report, I make it clear that it is an elementary component of procedural fairness that the substance of evidence that is contrary to the ombudsman’s provisional or final conclusions must be disclosed.

As it happens, there is a submission that material evidence was not disclosed: that was the opinion of the GP Advisor who advised that given the lack of any relevant history it was reasonable for Dr Howarth to make an initial diagnosis of urinary tract infection. Although this supportive advice was not disclosed until the Draft Report it was summarised in that report with the consequence that no point can now be taken about it.

There is also a discrete issue about the ombudsman’s failure to disclose the additional evidence he received as a consequence of making further investigations into the matters raised by the appellants and their experts in response to the Draft Report. The additional evidence included both factual material and further expert opinions from the clinical advisors. Save that it demonstrates that the GP Advisor deferred to the Surgical Advisor the additional evidence is neither decisive of nor sufficiently material to the ombudsman’s conclusions, with the consequence that no matter how unfortunate the failure to disclose the same may appear, its non disclosure does not amount to procedural unfairness.

The appellants have a further and significant criticism of the ombudsman’s procedure which is a challenge to the process of producing a draft report with provisional findings for the purpose of eliciting comment from the parties. Putting to one side pre-determination, which I deal with below, I do not accept that this procedure is inherently unfair. The letter attached to the Draft Report makes clear that the findings are provisional, and the appellants were given the opportunity to comment, make submissions and submit and rely upon their own expert evidence. The fact that further clinical advice was taken is clear evidence that the ombudsman’s procedure was capable of dealing with the appellants’ case in reply.

The utility of a draft report procedure has been commented upon in decisions of this court which have concluded that there is due process and fairness in the same: see, for example, R (Bradley) v Secretary of State for Work and Pensions [2009] QB 114 at [58] and R (Kay) v Health Service Commissioner [2009] EWCA Civ 732 per Sullivan LJ, Senior President at [8]. Furthermore, the ombudsman’s process as described in her letters inviting observations from the appellants was intended to be ‘iterative’. The doctors could either comment as the investigation went along or at the stage of a draft report or conceivably both. Had they not been encouraged to be reticent by the ombudsman’s representative, they could have commented earlier and caused the ombudsman to engage with their responses before drafting her report.

Lewis J dealt with the allegations of procedural unfairness at length, and he took each of the appellants’ allegations in turn. He directed himself correctly in law as to the minimum standards of procedural fairness and save in respect of the section 11 protection was correct to conclude that the respondent adhered to such standards.

I would also emphasise that it is important that this court does not import into the informal, non-judicial process of administrative and complaints adjudicators like the ombudsman the procedures of courts and tribunals. The adjudication process is an informal resolution of a complaint or problem where other remedies are not reasonably available or appropriate. The procedure is a matter entirely within the gift of the ombudsman provided that her decision making process is lawful, rational and reasonable.

In fairness to the appellants, it is important to take each of the complaints they make about the procedure and give a view from the perspective of good adjudicative practice, a matter about which this court is entitled to take judicial notice:

Applying the test of whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the investigation was biased by pre-determination, Lewis J found that there was no apparent pre-determination. He found that the ombudsman’s expression of views at the outset ie in the assessment and the subsequent content of the Draft Report in the context of the caveats attached to it did not give rise to an appearance of bias. He held that, read in context, they were expressions of preliminary views which were intended to give the appellants the opportunity to comment. The judge found that the ombudsman’s conclusions were based on the evidence.

On this issue I have come to the firm conclusion on the facts that Lewis J was wrong. This court has had the advantage of being taken through the entirety of the ombudsman’s file. The contents give every appearance of pre-determination and almost none of a fair handed approach. From the outset the actions of the doctors were assessed and reported upon as if they were ‘guilty as charged’. The language used by the ombudsman’s officers was firm, concluded and adverse and gave no hint that there may be a possibility of doubt. It may be the case that the absolute nature of the standard of review adopted by the ombudsman tends to inculcate an approach that there cannot be a reasonable explanation or alternative once a clinical opinion is given by an independent advisor that is adverse. I discuss this below and I am happy to accept that the perception of bias by pre-determination does not originate in any of the officials being deliberately adverse. Although the procedure adopted by the ombudsman is intended to ring fence the initial assessment from the subsequent investigation, it is acknowledged that the adverse opinions contained in the former were in the file which was made available to the investigator. That was wrong.

It is also conceded that the ombudsman’s evidence from one of her most experienced Directors, Mr Kellett, contained an unfortunate use of language when he said “if it is not written down it didn’t happen unless there is other corroborating evidence”. I do not accept that this was an erroneous use of language: it reflected the practice of and language used by officials in the documents to which this court was taken ie unless the doctor had noted something in the clinical records, poor practice is assumed. Aside from reinforcing an impression of pre-determination, that is an inappropriate way to conduct an investigation: it merely engenders defensive note taking by doctors rather than clinical good practice. It is important to look for corroborating contemporaneous notes and also for evidence of good recording and safeguarding practices but it is also important to listen to what a professional says.

Mr Kellett’s evidence cannot be ignored. The investigator filed a statement of evidence but that was limited to events up to 17 January 2013. Why that is the case is a matter that only she can answer. Mr Kellett was not involved in this complaint but as a senior officer of the service his evidence cannot be ignored, particularly when it is the only evidence that deals with the conduct of investigations and the evidence is not contradicted other than in submissions. His evidence was that the appellants had the opportunity to “dispute” the provisional findings and recommendations rather than to inform them and more pertinently he said in his written evidence that “where the provisional decision was to be overturned, a revised Draft Report would always be produced and shared. A decision to overturn a provisional view was usually approved by a Director of Investigations” [emphasis added].

It is also of note that in this case the final report of the ombudsman contained not one trace of the extensive expert opinions provided to the ombudsman on behalf of the doctors nor of the important challenges to the advices of the ombudsman’s clinical advisors in respect of good practice, the timing of symptoms and causation. It is as if the ombudsman had never received those opinions. They were rejected without explanation.

The question is whether a fair-minded and impartial observer would conclude that the ombudsman had pre-determined the outcome of the complaint both at the outset of the investigation and at the Draft Report stage. Jackson LJ (with whom the rest of the court agreed) in Lanes Group v Galliford Try Infrastructure [2011] EWCA 1617 held at [45] that:

“Pre-determination arises when a judge or other decision maker reaches a final conclusion before he or she is in possession of all the relevant evidence and arguments.”

Jackson LJ cited the speech of Lord Hope in Porter v Magill [2002] 2 AC 357 to identify the test: the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

The application of the law to the facts of the case in Lanes Group is instructive. The case concerned an adjudicator who had sent preliminary views to the parties for comment and submissions. At [56] Jackson LJ held:

“There is nothing objectionable in a judge setting out his or her provisional view at an early stage of proceedings, so that the parties have an opportunity to correct any errors in the judge's thinking or to concentrate on matters which appear to be influencing the judge. Of course, it is unacceptable if the judge reaches a final decision before he is in possession of all relevant evidence and arguments which the parties wish to put before him. There is, however, a clear distinction between (a) reaching a final decision prematurely and (b) reaching a provisional view which is disclosed for the assistance of the parties.”

The judicial context of those remarks needs to be borne in mind. The ombudsman’s process is not intended to be formal or judicial but it is equally not possessed of the skill and expertise of the judge. The ombudsman’s preliminary findings are not in the style of an early neutral evaluation by a judge of all of the evidence. The Draft Report in this case was a complete investigation of the material that the ombudsman had decided to consider with the benefit of clinical advice and a formed evaluation of the same. If this was an adversarial process, the Draft Report would be the prosecutor’s opening statement. It is not and should not be, with the consequence that it should not read as if it is. If a Draft Report process is going to be used, the style of provisional evaluation should clearly admit of the possibility that there may be other explanations and opinions that the ombudsman has yet to consider.

That said, the appellants contend that the ombudsman’s initial casework assessment form discloses pre-determination. This form appears to be the form which the ombudsman’s assessor uses to assess whether a case is suitable for investigation. It is internal, and there must be some sort of evaluation of the complaint if there is to be a view taken on acceptance. Viewed in isolation and given its limited purpose, I think that a fair-minded observer would not see this as pre-determination. I re-iterate, however, that it was inappropriate to leave it on the file to be read by those subsequently investigating and clinically advising upon the complaint.

The appellants also contend that the Draft Report discloses pre-determination. Given the language of and associated with the investigation examples of which I set out in the annexe to this judgment, it is with regret that I have concluded that a fair minded and informed observer having considered the facts would have concluded that the investigation was pre-determined.

Lewis J considered the judgment of the High Court in R (Attwood) v Health Service Commissioner [2008] EWHC 2315 (Admin) and concluded that Burnett J, as he then was, was correct to hold that section 3 of the 1993 Act does not require the ombudsman to adopt a particular standard of review. It should be noted, however, that although the ratio of Attwood is that the standard of review is for the ombudsman to determine, in that case the ombudsman had made a public statement that he would apply the test described in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 [the Bolam test] with the consequence that the individual investigator was wrong to apply a different test.

Lewis J found that since Attwood the ombudsman had changed the standard to be applied to alleged service failures in areas involving the exercise of clinical judgment. Specifically, the ombudsman had set out the new ‘normative’ standard in a report entitled “SixLives: the provision of public services to people with learning difficulties” and the investigator in this case had applied the new standard.

On this issue, there are two questions to be considered:

Burnett J dealt with the standard of review in (Attwood) in the following way at [27]:

“The purpose of the Health Service Commissioner … is to adjudicate over complaints and provide redress by making findings and recommendations. It is, in my judgment, clear that Parliament was not seeking to create a parallel jurisdiction to courts and tribunals, which jurisdiction should apply the same principles by reading over established legal concepts into the language of various Acts governing the jurisdiction of the ombudsmen.”

He concluded, at [27], that:

“As a matter of principle, it is for the ombudsman to decide and explain what standard she applies before making a finding of a failure in a service. That standard as defined will not be interfered with by a reviewing court unless it reflects an unreasonable approach.”

In R (Rapp) v The Parliamentary and Health Service Ombudsman [2015] EWHC 1344 (Admin), Andrews J was concerned with the Parliamentary Commissioner Act 1967. She extracted several general propositions from the case law, and made the following conclusion at [38(v)]:

“It is for the Ombudsman to decide and explain what standard he or she is going to apply in determining whether there was maladministration, whether there was a failure to adhere to that standard, and what the consequences are; that standard will not be interfered with by a court unless it reflects an unreasonable approach.”

The breadth of the ombudsman’s discretion to determine the manner in which investigations are carried out is well established. In R v Local Commissioner for Administration ex p Bradford CC [1979] QB 287 per Lord Denning MR at 311 it was held that Parliament had “deliberately left it to the ombudsman himself to interpret … as best he could: and to do it by building up a body of case law on the subject”. Whether the subject matter of the investigation is maladministration or service failure that principle remains sound. It follows that the court can only interfere with the standard adopted if it is Wednesbury unreasonable. Whether a standard lacks clarity, is incapable of being readily discerned or tends to produce inconsistent decisions are issues relevant to whether the standard is unreasonable.

The question of what particular standard the ombudsman can adopt is more nuanced. A number of questions were raised that touch on that question including: if the ombudsman’s stated policy was that the standard varied, could the ombudsman apply a different standard in every case? If the ombudsman has advertised that she will adopt one standard, by what process can this standard be changed? Does the ombudsman have to consult before changing? Can she simply publish the new standard? In what sort of document does this have to be done? If the new standard is initially insufficiently publicised, can it become sufficiently publicised through long usage of the new standard?

The starting point is set out in the judgment of Burnett J in Attwood at [35]. He found that the ombudsman should have adopted the Bolam standard in that case because the ombudsman had stated in a paper published in 1995 (for the benefit of Parliament’s consideration of the statutory amendments that came into force) that (he) would adopt a test which was materially the same as the Bolam test. That was presumably on the basis that the 1995 paper created a legitimate expectation from which it would be unfair to resile without more.

It must also be possible for the ombudsman to change her stated policy on the standard of review. To hold otherwise would be to fetter the discretion which Parliament has given to her. The principle that is engaged is helpfully described in the oft quoted observations of Taylor J in R v Home Secretary ex parte Ruddock [1987] 1 WLR 1482 at 1497:

“The Secretary of State cannot fetter his discretion. By declaring a policy he does not preclude any possible need to change it. But then if the practice has been to publish the current policy, it would be incumbent upon him in dealing fairly to publish the new policy, unless again that would conflict with his duties.”

It is also important to consider whether there was publication of the new policy. The appellants submit that there was no public statement, announcement or consultation. The ombudsman submits, in contrast, that there were multiple statements: paras 43 – 46 of the Six Lives report (which was laid before Parliament), letters to the MDU on 18 April 2011 and 3 December 2009, and the letters sent to the appellants in the present case.

The Six Lives report sets out the standard which the ombudsman applies. There is no recognition or explanation that this is a departure from the previous policy, but I do not think that such a statement is necessary. The Six Lives report is a public document which was laid before Parliament, so that it is available for anyone to read. The letters of the ombudsman to the MDU over time (together with the letters to the appellants) make very clear the standard against which their actions would be assessed which was as follows:

“[W]e will 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).”

I agree with Lewis J and with Burnett J in Attwood that the ombudsman is entitled to determine the standard to which a decision is to be made and there was adequate notice of the change that was made to the standard. What concerns me more is the rationality and reasonableness of the standard chosen by the ombudsman. The previous standard was well known to everyone in the field. The essence of it was that the clinical judgement of a doctor complained of would be compared against a reasonable body of equivalent medical practitioners.

The new standard appears to be that the ombudsman is entitled to choose a statement of good practice and measure the doctor against it. It is a normative approach that permits of no nuances in clinical opinion or practice. Where such differences exist, as they did in this case, there is no mechanism to choose between them. There is no clarity about what the practice is that a doctor may be judged upon. If the ombudsman’s clinical advisers take one line of professional good practice as they did in this case, it matters not that there is another entirely valid good practice, it can be ignored. Medicine is an international profession, the skills and experience of medical practitioners are shared across national and clinical boundaries and there are many developing areas of practice even in the most conservatively settled processes. The ombudsman’s standard cannot take account of these differences.

In this case the ombudsman chose a surgical expert who relied upon his own research. No attempt was made to understand whether that research which was published internationally had been peer reviewed and/or was accepted in this jurisdiction. For all the ombudsman might know, the research may not be accepted by a reasonable body of medical practitioners in the field. That in itself leads to another problem, the ombudsman chose a surgical expert who was a colorectal surgeon. That was not an obviously relevant or appropriate expert to advise upon the appropriate practice of a GP.

The GMC framework ‘Good Medical Practice’ against which it is said the appellants’ actions were measured is not a helpful explanation. By way of a relevant example, the framework requires that doctors “be competent in all aspects of [their] work” and “adequately assess the patient’s condition”. The framework does not say how or what is competent or adequate practice because if necessary the GMC’s fitness to practice panel will resolve disputed questions by reference to what is reasonable, which admits of the possibility of more than one answer. No doubt that is because when the GMC considers alleged failures in clinical practice, it asks the question whether a doctor has fallen seriously below the standard of a reasonably competent doctor in his or her specialist field (see General Medical Council v Nankhonya [2015] EWHC 1425 (Admin) at [5]. The GMC uses effectively the same standard as the civil courts.

The standard chosen by the ombudsman is beguilingly simple but incoherent. It cannot provide clarity or consistency of application to the facts of different cases. There is no yardstick of reasonable or responsible practice but rather a counsel of perfection that can be arbitrary. It runs the risk of being a lottery dependent on the professional opinion of the advisor that is chosen. It is unreasonable and irrational and accordingly, unlawful.

Lewis J dismissed this ground of challenge shortly. He found that the ombudsman considered: (i) that Mrs Pollard was principally seeking a recognition of a failure in care and steps to avoid a recurrence; (ii) that these were not available through legal action; and (iii) that the investigation was not barred by section 4(1) of the 1993 Act. Lewis J found that the ombudsman was entitled to reach that conclusion.

Mitting J considered the application of section 4 of the 1993 Act in R (Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC 3351 (Admin). He held at [30] that:

“It is a qualified prohibition but it permits the Ombudsman to be satisfied “that in the particular circumstances, it is not reasonable to expect that person to resort or to have resorted to” the alternative remedy, litigation. Particular circumstances need not be unique to an individual or family. They can arise frequently, as in the Ombudsman's experience they do. Particular circumstances can include the unwillingness of individuals to litigate, their inability to do so, their wish to have their complaint determined in all its aspects, and not having monetary compensation at the forefront of their mind.”

There is little further authority on the application of section 4. The appellants cite JR55 [2016] UKSC 22 in favour of their case. Lord Sumption JSC stated the following at [17]:

“The Commissioner accepted that the complaint should be investigated because Mrs R said that she was not seeking monetary redress but only wanted to know what had gone wrong. I agree that that was a proper basis on which to undertake the investigation.”

The appellants cite this passage in support of the contention that it is relevant to section 4(1)(b) whether the person is seeking financial redress. Three points can be made about this. First, it is uncontroversial that the desire for financial compensation is relevant to section 4. The ombudsman accepts that. Second, the statement of Lord Sumption goes no further than that. He did not say that a complaint cannot be investigated if the person seeks financial redress (even if that is a secondary consideration). The context of Lord Sumption’s statement is whether it was appropriate for an ombudsman to recommend a payment of money when the complainant is not seeking money. Third, the statement of Mitting J is more pertinent. If financial compensation is not the primary motivation of the complainant, it may not be appropriate for the person to pursue a legal remedy.

Ultimately, two questions need to be answered under section 4 of the 1993 Act: (1) is there a legal remedy? (2) is the ombudsman satisfied that in the particular circumstances it is not reasonable to expect that person to resort to it?

The investigator’s analysis of whether there was a legal remedy was superficial but probably sufficient. The real mischief alleged is in respect of the second question. The question of reasonableness is one for the ombudsman, and this court can only interfere if the ombudsman’s approach discloses an error of law or the conclusion is irrational. The following principles appear to be clear:

Lewis J considered the evidence which was before him and concluded that the ombudsman was entitled to reach the conclusion that the principal remedy which Mrs Pollard was seeking was a recognition of a failing in care and steps to avoid a recurrence. I agree that such a conclusion would have been open to the judge had it in fact been reached by the ombudsman and most importantly had the ombudsman obtained and considered any information about Mrs Pollard’s circumstances. Mrs Pollard may not have asked for ‘systemic change’, but the ombudsman was entitled to put that label on the substance of what she was seeking. The statement that financial compensation would help, in response to a direct question about money, is not the response of a person primarily motivated by an award of damages.

Mrs Pollard did not seek de-registration or a restriction on either doctor’s practice so that the GMC process which in any event had been concluded in respect of Dr Howarth was not an alternative remedy. What she wanted was to prevent this happening again. Whether in the circumstance that different clinical opinions were not accorded respect by the ombudsman whereas they would have been in a civil court, there was an opportunity to make a decision to prevent a recurrence is a moot point. In order to achieve change to prevent recurrence of harm you have to understand what it is that has happened. A clinical negligence claim would at least have provided a full inquiry as to the clinical facts and the standards of care that were applicable to those facts in the medical profession. It would also have provided a recognition of any failures in care that might need to be addressed. Given that this was not a ‘system failure’ case, it was incumbent on the assessor to obtain the circumstances from Mrs Pollard and thereafter analyse them with a view to coming to a reasoned decision.

I agree that there is nothing in the submission of the appellants that the initial panel meeting could not have considered the question of alternative remedies at a time when Mrs Pollard had not enlarged her complaint. The telephone conversation in which that occurred was on 14 January 2013. The ombudsman had a second opportunity to consider the enlarged complaint at the planning meeting held on 17 January 2013 where it was recorded that legal proceedings were not an appropriate remedy for Mrs Pollard. That was at a time when the ombudsman had not notified Dr Miller of the existence of a complaint let alone permitted her to comment on the same.

What was recorded in the notes was the opinion of the assessor not a decision on the merits: it was not in accordance with the ombudsman’s internal guidance which correctly advises that a decision should be expressed “in terms of the particular circumstances in [the] case not simply by reference to general criteria”. Although the assessor opined that there was no reasonable alternative remedy she did not in fact undertake any assessment of the question by obtaining information and analysing it nor did the ombudsman make a decision in accordance with her statutory duty. The lack of such a decision is fatal to the decision to investigate which was accordingly unlawful.

My conclusion is that the procedure to be used for an assessment and an investigation are matters for the ombudsman provided that the procedures conform to broad common law principles of fairness and provide for the decisions that are required in the legislative scheme. The standard of review is also for the ombudsman but that standard has to be a standard that is clear and capable of being consistently applied. On the facts of this case, the required opportunity for comment was not given prior to the investigation being conducted and a purported decision on alternative remedy was assumed rather than being made on the merits with the consequence that the decision to investigate must be quashed. The investigation was sufficiently biased by pre-determination that its conclusions must also be quashed. There are aspects of poor practice which are not of themselves sufficient to amount to a procedural unfairness but the ombudsman may think that they require review.

I would allow the appeal, set aside the order of Lewis J, and substitute an order quashing the ombudsman’s decision.

I agree.

I also agree.