Miller & Anor v The Parliamentary and Health Service Ombudsman

The Ombudsman may investigate a complaint about injustice arising from clinical care, including the actions of more than one practitioner, if the complaint can reasonably be interpreted that way. The Ombudsman must give the persons concerned the gist of the allegations and a meaningful opportunity to comment, but the precise investigative procedure is discretionary. A draft report with provisional findings may satisfy procedural fairness if the response is conscientiously considered. The Ombudsman is not required to apply the Bolam test. She may define and apply her own reasonable standard of service failure by reference to professional guidance and established good practice. An alternative negligence remedy does not bar investigation where it would not provide the outcome actually sought. Financial redress may be recommended where it is reasonably and rationally related to the injustice.

The claimants, two general practitioners, sought judicial review of a report by the Parliamentary and Health Service Ombudsman concerning the care provided to their deceased patient, Mr Pollard. The Ombudsman found service failure in the care provided on 13 and 15 June 2012 and concluded that appropriate care on 15 June would probably have avoided his death. She upheld the complaint and recommended an apology and payment of £15,000 to his widow.

The claim challenged the Ombudsman’s jurisdiction, procedural fairness, alleged predetermination, the standard applied to clinical judgment, the availability of a negligence action, and the recommendation of financial redress.

1. Complaint and jurisdiction. The written complaint could reasonably be understood as concerning the injustice arising from Mr Pollard’s death and the actions of both doctors. The Ombudsman was entitled to clarify and reconsider the complaint’s scope during the investigation, applying the principles in R (Cavanagh) v Health Service Commissioner for England [2006] 1 WLR 1229 and R (Morris) v The Health Service Commissioner and Guys and St Thomas’ NHS Foundation Trust [2014] EWHC 4364 (Admin).
2. Fairness. Section 11 of the Health Service Commissioners Act 1993 and the common law required sufficient particularity to permit a meaningful response. The claimants received that opportunity through the investigation and draft report. The Ombudsman was not generally required to disclose material used solely to decide whether to investigate, or every expert report, provided its substance was adequately summarised. Later material did not introduce a new issue on which a further response was required.
3. Predetermination. Applying Lanes Group plc v Galliford Try Infrastructure plc [2012] Bus LR 1184 and the fair-minded and informed observer test in Porter v Magill [2002] 2 AC 357, neither the preliminary assessment nor the draft report created an appearance of predetermination.
4. Standard of review. Following Attwood v Health Service Commissioner [2008] EWHC 2315, the Act did not require the Bolam standard. The Ombudsman could define a reasonable standard of service failure. Her use of GMC guidance and established good practice was clear and lawful.
5. Alternative remedy and redress. Section 4(1) did not bar the investigation because a negligence action would not provide the systemic acknowledgement and preventive action principally sought. The Act permitted a recommendation of financial redress, provided it was reasonably and rationally related to the injustice. The claim for judicial review was dismissed.