Atwood v The Health Service Commissioner

The statutory concept of a failure in a health service does not necessarily import negligence or culpability. The Ombudsman may apply a standard different from the Bolam test, provided the standard is explained and is not unreasonable. However, where the Ombudsman has publicly stated that clinical judgment will be assessed by reference to a reasonable and responsible exercise of clinical judgment of the standard reasonably expected by the patient, that formulation is indistinguishable from Bolam. Applying a lower, undefined standard is therefore a misdirection in law. An Ombudsman’s report must give intelligible and adequate reasons, read as a whole. The more serious the allegation and reputational impact, the more explanation is required.

The claimant, a consultant surgeon, sought judicial review of a report by the Health Service Commissioner concerning the treatment and subsequent death of a patient. The report criticised the patient’s post-discharge management and the information given to him and his family. The claimant argued that the Ombudsman had failed to apply the Bolam test to matters of clinical judgment and had inadequately reasoned the report’s detailed criticisms. The court considered the statutory scheme under the Health Service Commissioners Act 1993, the relationship between the Ombudsman’s jurisdiction and negligence claims, and the adequacy of reasons required for a report containing serious professional criticism.

1. Statutory jurisdiction. The language of section 3(1) of the Health Service Commissioners Act 1993 does not create a parallel negligence jurisdiction. “Injustice”, “hardship” and “failure in a service” are not necessarily tied to unlawfulness, loss or culpability. It is for the Ombudsman to define and explain the standard applied, subject to review for unreasonableness.
2. Clinical judgment. The statute did not itself require application of the Bolam test. Nevertheless, the Ombudsman’s published formulation required assessment of whether clinical actions were based on a reasonable and responsible exercise of clinical judgment of a standard the patient could reasonably expect. That formulation was indistinguishable from the Bolam approach. The Ombudsman was bound to apply it when deciding whether to stigmatise clinical judgment as unreasonable.
3. Error of law. The investigating officer expressly treated the applicable standard as lower than Bolam. He therefore misdirected himself in relation to the criticism of the claimant’s post-discharge clinical management. The communication criticism was less clearly directed to clinical judgment, but the report’s language suggested that the same lower standard had been used.
4. Adequacy of reasons. An Ombudsman’s report must be read fairly and as a whole. Its reasons must address the principal controversial issues and explain the resolution of principal factual disputes. The required degree of detail is flexible, but serious allegations and adverse reputational consequences require fuller explanation. Bare conclusions would be unfair.
5. The detailed complaints about alleged evidential and analytical errors did not disclose additional public law errors. The report, read with the assessors’ reports, underlying evidence and exchanges with the claimant’s solicitors, adequately explained the factual conclusions and disclosed no irrationality. The court considered that the appropriate form of relief required further submissions and declined to excise or rewrite parts of the report.

This was a first-instance judicial review in the Administrative Court. The judgment records no earlier judicial decision in the same proceedings.