Cavanagh & Ors v Health Service Commissioner

The Health Service Commissioner may investigate only a complaint duly made under the statutory scheme. Her broad discretions as to whether and how to investigate do not permit an investigation at large or an expansion of the complaint beyond what the complaint and the relevant response warrant.

A complainant cannot artificially confine an inquiry. A clinical issue may properly be investigated where the health body disputes the need for the treatment sought. Where the need is accepted and the body gives another explanation for not providing it, relevance requires the Commissioner to investigate and report on that explanation. The power to disclose patient-safety concerns under Health Service Commissioners Act 1993 does not enlarge the remit of the investigation.

Mr Redmond complained to the Health Service Commissioner that an NHS trust had failed to make satisfactory arrangements to monitor and treat his disabled daughter for an asserted vitamin B12 disorder. The Commissioner largely rejected the complaint after obtaining expert reports which criticised the diagnosis and the professional conduct of Dr Cavanagh and Dr Bhatt. She referred both doctors to the General Medical Council.

The doctors and Mr Redmond sought judicial review. Henriques J dismissed the applications except for two minor findings against Dr Cavanagh: [2004] EWHC 1847 (Admin). The three appeals were conjoined. The central issue was whether the Commissioner had statutory power to investigate and make findings about the diagnosis, treatment need and the doctors’ competence when the complaint and the Trust’s written response had proceeded on the premise that vitamin B12 treatment was indicated.

1. The appeals were allowed. The Commissioner’s report exceeded her statutory powers substantially, rather than technically or severably, and was consequently vitiated in its entirety.

2. Under Health Service Commissioners Act 1993, the Commissioner’s functions are confined to investigating complaints. Her discretion under section 3(2) concerns whether to initiate, continue or discontinue an investigation. Her discretion under section 11(3) concerns its procedure. Neither discretion authorises her to enlarge the ambit of the complaint or investigate matters beyond those warranted by it.

3. The court accepted that a complaint does not operate like pleadings and cannot artificially limit a proper inquiry. A complaint that a Trust failed to provide treatment may be answered by a finding that the treatment was inappropriate. Whether that issue may be investigated depends first on the Trust’s response under section 11(1). If the Trust admits the treatment was indicated but explains why it was not supplied, the Commissioner must investigate that explanation. If it denies that the treatment was indicated, relevant clinical issues may be investigated. Relevance is everything.

4. Here, both the complaint and the Trust’s written response assumed that vitamin B12 therapy was indicated. The later doubts expressed orally by Trust personnel did not make the diagnosis an issue which the Commissioner was empowered to resolve. The report instead made extensive adverse findings about the diagnosis and both doctors’ competence, and treated those findings as the basis for only limited criticism of the Trust. That went beyond the complaint and any admissible investigation of it.

5. The disclosure power in section 15 permits the Commissioner to alert appropriate authorities to patient-safety concerns encountered within a lawful investigation. It does not enlarge the subject matter which she may investigate. The court reserved consequential relief for further submissions after judgment.

• Court of Appeal (Civil Division): Allowed the conjoined appeals and held that the Commissioner’s report was wholly vitiated because it exceeded her statutory powers: [2005] EWCA Civ 1578.
• Administrative Court: Henriques J dismissed the judicial-review challenges save for quashing two relatively minor findings against Dr Cavanagh: [2004] EWHC 1847 (Admin).