Kay, R (on the application of) v Health Service Commissioner

An ombudsman’s investigative procedure is inquisitorial, not adversarial litigation. Procedural fairness generally requires disclosure of material on which the ombudsman will rely or which may influence the decision, subject to the statutory and factual context and good reasons for withholding material. The ombudsman may decide relevance and need not disclose every document except that which is obviously irrelevant. Statutory restrictions on disclosure may bind recipients of information supplied by the ombudsman. The ombudsman may also require an undertaking limiting use of disclosed material to the investigation and report where that is necessary to comply with the statutory scheme.

Julie Kay, who lacked legal capacity, challenged the Health Service Commissioner’s decision concerning complaints about psychiatric treatment provided by an NHS Trust. The Commissioner agreed to disclose documents on which she proposed to rely or which might influence her decision, but withheld material concerning earlier periods, matters outside the complaints, and personal or sensitive data concerning others. She also required Mr Kay, acting as litigation friend, to undertake to use disclosed material only for the investigation and report.

The judicial review challenged both the extent of disclosure and the power to impose the undertaking.

1. Application refused. The Commissioner had not acted unfairly by withholding the three identified classes of documents. The procedure was governed by the wide discretion conferred by the Health Service Commissions Act 1993 and was inquisitorial rather than equivalent to court proceedings.
2. The approach in Turpin [2001] EWHC Admin 503 required disclosure, prima facie, of material on which the ombudsman would rely or which might influence the decision, unless there were good reasons for withholding it. It did not require disclosure of everything except material that was obviously or logically irrelevant, nor did it require the complainant to inspect the whole file and determine relevance.
3. The Commissioner was entitled to determine relevance in the first instance. The reasons given for withholding records outside the complaint period, documents concerning matters not complained of, and unrelated personal data appeared sound. The claimant’s assertions that the material might assist other proceedings were speculative, particularly in light of the significant disclosure already offered and the Commissioner’s preliminary findings.
4. Section 15 applied to information received by persons from the Commissioner. It restricted disclosure to the purposes of the investigation and any report. Otherwise the Commissioner’s statutory restriction could be defeated merely by passing confidential information to a complainant.
5. Alternatively, the Commissioner had power, as part of her broad procedural discretion, to require an undertaking needed to secure compliance with the letter and spirit of the statutory scheme. The undertaking did not prevent other proceedings: Mr Kay could identify the existence of documents and seek disclosure through appropriate procedures or from the Healthcare Commission.
6. Permission to appeal was refused. There was no real prospect of success, and no sufficiently compelling wider reason for permission.

First-instance judicial review. The application was refused and permission to appeal was declined.