Blackmore, R (On the Application Of) v Parliamentary And Health Service Ombudsman

The statutory bar on investigating personnel matters prevents the Health Service Commissioner from investigating a procedure concerned with professional performance merely because information arose from a complaint. The exception for procedures established to examine complaints applies to shortcomings in handling a complaints procedure itself. It does not extend to a performance process which may receive information generated by a complaint but does not investigate the complaint. A claim for judicial review may also be refused for delay where the claimant has provided no good reason for failing to issue promptly. The court nevertheless observed that, as a matter of procedural fairness, a doctor should ordinarily be notified of allegations before referral to the General Medical Council and given an opportunity to make relevant representations.

This was a renewed application for permission to seek judicial review of the Ombudsman’s refusal to investigate a complaint concerning the referral of allegations about a general practitioner to the General Medical Council. The Ombudsman considered that the complaint concerned employment matters and that the claimant had later had an opportunity to challenge the allegations through the GMC process.

The claimant argued that he was not employed by the relevant body and that the statutory exception for investigations concerning complaints procedures applied. The court also considered whether the claim was out of time and whether there was a good reason for the delay.

1. Permission refused. The claimant’s challenge was arguable on some points, but jurisdiction and delay provided insuperable obstacles.
2. Section 7(1) of the Health Service Commissioners Act 1993 prohibited an investigation into action concerning appointments, removals, pay, discipline, superannuation or other personnel matters in relation to service under the National Health Service Act 2006. The claimant accepted that the matters appeared to fall within that provision.
3. Section 7(3B) did not assist the claimant. The performance procedure relied upon was designed to identify and support doctors whose performance caused concern and to protect the public. It was not a procedure established to examine complaints. The fact that information might originate from a complaint did not alter the character of the procedure. The subsection concerned shortcomings in the handling of a complaints procedure, not action taken under a separate professional-performance process.
4. The claim was also issued one or two days late. The claimant’s advisers had left the matter until the last moment and had not provided a good reason for the delay. That independently justified refusing permission.
5. The court considered that the claim was not totally without merit. If a primary care trust referred allegations to the GMC without notifying the doctor that a complaint had been made or giving an opportunity to provide relevant representations, that practice was at least arguably unlawful. The doctor should ordinarily be told of the concerns and allowed to address their weight, justification and the necessity of referral. This observation was made without hearing from the primary care trust and did not affect the refusal of permission.
6. The Deputy Judge’s costs order was superseded. The claimant was ordered to pay £5,500 inclusive of VAT, reflecting the costs of the acknowledgment of service and the additional work caused by the claimant’s procedural shortcomings.

• High Court (Administrative Court): a Deputy Judge refused permission on the papers. Mr Justice Collins, on renewal, refused permission and superseded the earlier costs order.