Mencap, R (on the application of) v Parliamentary and Health Service Ombudsman

An ombudsman investigating maladministration or service failure must take relevant statutory duties into account, but need not treat the statutory standard as the sole or decisive test. The investigation may require an evaluative assessment of the range of reasonable responses in the circumstances, informed by expert evidence and the relevant disability. Disagreement with the level at which the ombudsman draws the line, or with the evaluation of the evidence, does not ordinarily establish an error of law. A judicial review claim may also be refused where delay and failure to notify directly affected persons cause specific prejudice.

Mencap sought judicial review of the Parliamentary and Health Service Ombudsman’s report concerning the treatment of six people with learning disabilities. The challenge concerned the approach to reasonable adjustments and best-interests decision-making in the NHS cases. Mencap alleged that the Ombudsman had acknowledged the duties under the Disability Discrimination Act 1995 but applied a lower and legally erroneous standard when deciding whether maladministration or service failure had occurred.

The court also considered whether the claim should proceed despite delay, defective grounds and the failure to serve the treating general practitioners, whose conduct was the ultimate subject of the challenge.

1. Merits. The renewed application for permission to bring judicial review proceedings failed on the merits. Sections 19(1)(b) and 21(1) of the Disability Discrimination Act 1995 were relevant to the Ombudsman’s investigation, but the Ombudsman was not required to determine whether each practitioner’s practice, policy or procedure engaged the statutory duty as the first stage of the inquiry.
2. The Ombudsman’s task was to decide whether the treating obligation had fallen below the standard reasonably expected of medical practitioners treating disabled patients, so as to amount to maladministration or service failure. That involved considering a range of possible responses, including the effect of the patient’s disability on diagnosis and treatment, and could be informed by expert advisers. It was not simply the ordinary clinical-negligence test.
3. The court was not concerned with whether the Ombudsman had drawn the line at the correct point on the evidence. Mere disagreement with that evaluative judgment did not disclose an error of law or a failure to apply the correct legal test. The report, read as a whole, showed that the statutory framework had been understood and borne in mind.
4. The allegation that relevant professional guidance had not been considered also had no realistic prospect of success. Although the report did not always identify the precise guidance being applied, its discussion of the guidance and the expert advice demonstrated that it had been taken into account and that adequate reasons had been given.
5. The Court of Appeal decision in R v Local Commissioner for Administration in North and Northeast England ex parte Liverpool City Council [2001] 1 All ER 462 illustrated the distinction between an ombudsman’s investigative task and the operation of a criminal statute. It did not establish that a statutory duty could never be relevant to an ombudsman’s decision.
6. Procedure. The claim was also refused because it had not been brought as soon as reasonably practicable and the treating practitioners had not been served. Their ability to protect their interests had been prejudiced. The renewed application was dismissed. No further order for costs was made.

The judgment records that a single judge had previously refused permission. The renewed application for permission was dismissed by the High Court (Administrative Court) on the merits and, independently, because delay and failure to serve affected medical practitioners had caused specific prejudice.