Megarry, R (on the application of) v Health Service Ombudsman

The Health Service Ombudsman’s jurisdiction is subject to the temporal limits governing the extension to family health service providers. A complaint about care or treatment confined to conduct before 1 April 1996 falls outside that jurisdiction. Later complaints cannot create a bridge to pre-commencement conduct. Permission to appeal in judicial review proceedings should be refused where no error of law or principle is shown. Reliance on Article 8 did not alter the statutory result.

Mr Myles Megarry challenged the Health Service Ombudsman’s decision of 20 July 2000 not to investigate complaints concerning Dr Osborne’s consultation at the Student Health Service on 1 February 1996 and the refusal to establish an Independent Review Panel. The Ombudsman concluded that the care-and-treatment complaint fell outside his jurisdiction and that the convenor’s decision was not maladministrative. Maurice Kay J refused permission on paper on 30 November 2000. Turner J subsequently refused leave to apply for judicial review in the Administrative Court on 24 January 2001. Mr Megarry sought permission to appeal and proposed an additional point under section 6 of the Human Rights Act 1998 and Article 8. The central issue was whether later events could bring the pre-1 April 1996 conduct within the amended statutory jurisdiction.

Lord Justice Robert Walker dismissed the application for permission to appeal and made no order as to costs.

1. Statutory jurisdiction. The Health Service Commissioners Act 1993 originally confined the Ombudsman’s jurisdiction to alleged failures or maladministration by statutory health service bodies. The Health Service Commissioners (Amendment) Act 1996 extended the jurisdiction to family health service providers, including general practitioners. Section 3(1A) of the 1993 Act permitted investigation of complaints alleging injustice or hardship caused by such a provider.
2. Temporal limitation. The commencement arrangements applied the extension to action beginning on or after 1 April 1996, and to earlier action only where it could reasonably be said that part of the same action occurred on or after that date. The complaint against Dr Osborne concerned care and treatment confined to 1 February 1996. The applicant’s attempt to construct a bridge through the sequence of later complaints had no legal validity.
3. Judicial review. The Ombudsman had also considered whether the convenor’s refusal to establish an Independent Review Panel was maladministrative. The court found no mistake of law or error in principle in Turner J’s refusal of leave. The Ombudsman’s conclusion that the convenor had taken appropriate advice, considered the complaint thoroughly and acted reasonably disclosed no arguable basis for intervention.
4. Human rights point. The proposed reliance on section 6 of the Human Rights Act 1998 and Article 8 did not alter the conclusion. A further appeal would be hopeless.

Order: application dismissed; no order for costs.

1. Court of Appeal (Civil Division) Lord Justice Robert Walker dismissed the application for permission to appeal and made no order as to costs.
2. Administrative Court Turner J refused leave to apply for judicial review on 24 January 2001.
3. Administrative Court Maurice Kay J had previously refused permission on paper on 30 November 2000.