Morris, R (on the application of) v Health Service Commissioner & Anor

The Health Service Commissioner has a very broad investigatory discretion. Judicial review is available only on conventional Wednesbury grounds, including where the Commissioner plainly asks the wrong question or plainly misconstrues the complaint. A complaint should be interpreted by reference to the documents as a whole and their context, but the court need not impose a strict objective contractual construction. Where the documents admit more than one reasonable interpretation, the Commissioner’s chosen interpretation will not ordinarily be unlawful. A systemic complaint is not necessarily implied by a complaint about failure to provide documents or dissatisfaction with the explanation given.

The claimant sought access to her late daughter’s medical records under the Access to Health Records Act 1990. The Trust supplied only part of the material sought and was unable to locate the remainder. The claimant complained to the Health Service Commissioner, seeking the missing records and asserting that the Trust’s failures were unacceptable.

The Commissioner interpreted the complaint as confined to obtaining the missing records, investigated the Trust’s efforts, and declined to investigate further. The claimant sought judicial review, contending that the complaint also required investigation of systemic failures in the Trust’s record-keeping and archiving. The issue was whether the Commissioner’s interpretation of the complaint was unlawful on public law grounds.

1. Judicial review standard. The Commissioner’s powers under section 3 of the Health Service Commissioners Act 1993 are very broadly drawn. Section 3(5), requiring the Commissioner to act in accordance with her own discretion, produces a high threshold for review. The court may intervene on conventional Wednesbury grounds, including where the Commissioner plainly asks the wrong question or plainly misinterprets the complaint. The approach in R (on the application of Jeremiah) v Parliamentary and Health Service Ombudsman [2013] EWHC 1085 (Admin) was endorsed, with preference given to its reasoning over any different emphasis in R (on the application of Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC 3351 (Admin).
2. Interpretation of the complaint. The claimant’s documents were not to be construed as commercial contracts. The court excluded private subjective meanings and post-decision material, and considered the words used in their context. Nevertheless, the documents could bear more than one reasonable interpretation. The claimant could succeed only if the systemic complaint was the only reasonable interpretation of the material.
3. Application. Read as a whole, the complaint form focused on the Trust’s failure to provide the missing records. The claimant’s dissatisfaction with the Trust’s explanations formed part of that complaint and did not necessarily amount to a request to investigate systemic failings. The Commissioner’s interpretation was therefore reasonable and was not legally impugnable. The attendance note of the telephone conversation reinforced that conclusion.
4. The application for permission to cross-examine the Commissioner’s officer was properly refused. Live evidence and cross-examination are exceptional, and were neither necessary nor proportionate where the contemporaneous attendance note was the best evidence.
5. The judicial review claim was refused. The defendant was awarded its costs, subject to detailed assessment if not agreed. Permission to appeal was refused, although the claimant was allowed 21 days from approval and dispatch of the judgment to lodge appellant’s grounds.

Permission to bring the judicial review claim was granted by Collins J after an oral hearing. The claim was dismissed by the Administrative Court. Permission to appeal to the Court of Appeal was refused by Jay J.