Miller & Anor v The Health Service Commissioner for England

An ombudsman exercising an informal and inquisitorial statutory jurisdiction must nonetheless comply with procedural fairness. Under section 11(1A) of the Health Service Commissioners Act 1993, a person affected must have a meaningful opportunity to comment on sufficiently particularised allegations before the decision to investigate is made.

A draft report may fairly be used to obtain representations, but the affected person must be able to answer the case, including material evidence necessary for that purpose. The ombudsman may choose and change the clinical-review standard, provided it is published, clear, rational and capable of consistent application. Under section 4, the ombudsman must make a reasoned decision, based on the complainant’s particular circumstances, about whether resort to an available legal remedy would be unreasonable.

Mrs Pollard complained to the Health Service Commissioner about the medical treatment given to her late husband by two general practitioners. The Commissioner investigated, upheld the complaint, found that appropriate care would probably have avoided his death, and recommended remedial action including compensation.

The doctors sought judicial review. Lewis J dismissed their claim in the Administrative Court: [2015] EWHC 2981 (Admin). They appealed, challenging the fairness and lawfulness of the investigation, including the opportunity to comment before investigation, alleged pre-determination, the clinical standard applied, and the assessment of alternative remedies.

The central question was whether the Commissioner’s process complied with the statutory scheme and the common-law requirements of fairness.

1. Appeal allowed. The court set aside Lewis J’s order and quashed the Commissioner’s decision to investigate and the conclusions of the investigation.

2. Section 11(1A) of the Health Service Commissioners Act 1993 required the Commissioner to give each doctor a meaningful opportunity to comment on the allegations before deciding to investigate. The gist of the allegations had to be sufficiently particularised to permit a focused answer. The decision to investigate had already been made when the relevant opportunity was purportedly offered, and no valid later decision was made. This was a substantive statutory protection, not a technical defect.

3. The informal and inquisitorial character of an ombudsman investigation did not require court-style disclosure or make a draft-report procedure inherently unfair. The doctors could respond fully to the draft report with expert evidence. However, fairness required disclosure, with the draft report, of the clinical evidence on which the Commissioner relied and of the substance of material tending against the provisional or final conclusions. The undisclosed post-draft material was insufficiently material to establish a separate unfairness.

4. A fair-minded and informed observer would have concluded that there was a real possibility of bias by pre-determination. The adverse assessment material was left available to the investigator and advisers, the draft report used concluded and adverse language, and the doctors’ expert evidence was effectively rejected without explanation. The investigation’s conclusions were therefore unlawful.

5. The Commissioner was entitled to select the clinical-review standard and to change a published policy fairly. But the normative standard applied here was irrational. It allowed one adviser’s preferred account of good practice to prevail without a rational means of addressing other responsible clinical opinion, and lacked a clear, consistently applicable yardstick.

6. Under section 4(1), the Commissioner had to determine whether a legal remedy existed and, if so, whether in the complainant’s particular circumstances it was unreasonable to expect resort to it. The latter inquiry required a reasoned assessment of matters including the remedies sought and financial circumstances. No such assessment or decision was made. That failure independently made the decision to investigate unlawful.

• Court of Appeal (Civil Division): Allowed the doctors’ appeal and quashed the Commissioner’s decision to investigate and the investigation’s conclusions: [2018] EWCA Civ 144.

• Administrative Court (Lewis J): Dismissed the doctors’ claim for judicial review: [2015] EWHC 2981 (Admin).