Factual and Procedural Background
This appeal arises from an order of Judge Lewis dated 22 October 2015, dismissing a judicial review claim brought by appellants who were registered medical practitioners working at a general practice in Chichester (the practice). The claim challenged a decision by the Health Service Commissioner for England (the ombudsman) who had upheld a complaint made by Mrs Pollard regarding the medical treatment provided to her late husband, Mr Pollard. The ombudsman found that Mr Pollard's death on 17 June 2012, caused by a burst colonic abscess secondary to undiagnosed diverticular disease, could have been avoided had appropriate care been provided in June 2012.
Mrs Pollard initially complained about the care provided by one doctor (Dr Howarth) and specifically excluded the other (Dr Miller). The complaint was made to the practice, the General Medical Council (GMC), and the ombudsman between August and September 2012. The ombudsman notified the practice but did not disclose the complaint details to the doctors until after the judicial review claim was issued.
The ombudsman undertook an investigation into the complaint, expanding its scope to include both doctors. The investigation involved clinical advice from specialist advisors and culminated in a draft report issued in October 2013, which upheld the complaint and recommended acknowledgment of failings, an apology, and compensation. The appellants were given an opportunity to respond with expert evidence. The final report was issued in October 2014 with similar conclusions and warnings about further action to ensure remedies for injustice.
The appellants challenged the lawfulness and procedural fairness of the ombudsman's investigation and decision, focusing on issues such as the scope of investigation, procedural fairness, pre-determination, standard of review, alternative remedies, and financial compensation.
Legal Issues Presented
- Scope of the ombudsman's investigation;
- Procedural fairness in the conduct of the investigation;
- Allegations of pre-determination and bias;
- Appropriate standard of review applied by the ombudsman;
- Availability and consideration of alternative remedies;
- Power and appropriateness of recommending financial compensation.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Home Secretary ex p Doody [1994] 1 AC 531 |
Principles of fairness depend on the context of the decision and the statutory framework. |
Guided the court in assessing procedural fairness relative to the statutory scheme of the ombudsman. |
| R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621 |
Wide discretion granted to the ombudsman in investigative procedures. |
Supported the recognition of the ombudsman's broad procedural discretion within statutory limits. |
| In re application for Judicial Review by J17 [2010] UKSC 27 |
Right to be informed of allegations and to respond to relevant material. |
Reinforced the requirement of natural justice and procedural fairness in administrative adjudications. |
| Cavanagh & Ors v Health Service Commissioner [2005] EWCA Civ 1578 |
Ombudsman has no general power to investigate beyond the content of the complaint. |
Clarified limits on the ombudsman's investigative scope and the necessity of disclosing complaint particulars. |
| R (Bradley) v Secretary of State for Work and Pensions [2009] QB 114 |
Due process and fairness in draft report procedures. |
Validated the use of draft reports with provisional findings to allow parties to respond. |
| R (Kay) v Health Service Commissioner [2009] EWCA Civ 732 |
Support for iterative investigatory process and opportunity to comment. |
Confirmed the appropriateness of the ombudsman's process allowing parties to comment at multiple stages. |
| Lanes Group v Galliford Try Infrastructure [2011] EWCA 1617 |
Definition and test for pre-determination and bias. |
Applied to assess whether the ombudsman's investigation was biased or pre-determined. |
| Porter v Magill [2002] 2 AC 357 |
Test for apparent bias based on the view of a fair-minded and informed observer. |
Used to evaluate allegations of bias in the ombudsman's investigation. |
| R (Attwood) v Health Service Commissioner [2008] EWHC 2315 |
Ombudsman's discretion to determine standard of review and its reasonableness. |
Confirmed that courts should only interfere with the ombudsman's standard if it is unreasonable. |
| R (Rapp) v The Parliamentary and Health Service Ombudsman [2015] EWHC 1344 |
Ombudsman's authority to set and explain standards applied in maladministration findings. |
Reinforced the ombudsman's discretion in choosing standards and the limited scope of judicial interference. |
| R v Local Commissioner for Administration ex p Bradford CC [1979] QB 287 |
Parliamentary intention to leave interpretation and development of ombudsman standards to the office itself. |
Supported the principle of ombudsman discretion in standards and procedures. |
| R v Home Secretary ex parte Ruddock [1987] 1 WLR 1482 |
Discretionary powers cannot be fettered; policies may change but require fair publication. |
Informed the court’s view on the ombudsman’s ability to change standards with appropriate notice. |
| R (Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC 3351 |
Qualified prohibition on investigation where alternative remedies exist, considering reasonableness. |
Guided assessment of alternative remedies and reasonableness under section 4 of the 1993 Act. |
| JR55 [2016] UKSC 22 |
Relevance of complainant’s motivation regarding financial redress to ombudsman’s jurisdiction. |
Clarified that seeking financial compensation as a primary motive affects suitability of investigation. |
| General Medical Council v Nankhonya [2015] EWHC 1425 |
GMC’s standard for fitness to practice is whether conduct falls seriously below a reasonable competent specialist. |
Used to contrast the ombudsman’s standard with established medical professional standards. |
Court's Reasoning and Analysis
The court carefully examined the ombudsman's statutory framework under the Health Service Commissioners Act 1993, focusing on the ombudsman's powers, discretion, and procedural duties. The court affirmed that the ombudsman has broad discretion over investigative procedures but must comply with statutory and common law fairness requirements, notably the duty to provide the persons investigated a meaningful opportunity to comment on allegations before deciding to investigate.
The court found that the ombudsman failed to provide the appellants with sufficient particulars of the complaint and an opportunity to comment prior to commencing the investigation, breaching section 11(1A) of the Act and principles of natural justice. The complaint letter and the assessment leading to the decision to investigate were not disclosed timely, and one doctor was not informed of the complaint until late in the process. Clinical advice was only disclosed after the draft report, which was the first time detailed allegations were clear enough for meaningful response.
Regarding pre-determination, the court disagreed with the lower court’s finding, concluding that the ombudsman's investigation showed signs of bias and predetermination. The ombudsman's file revealed firm, adverse language and a lack of impartiality, with expert opinions from the appellants disregarded without explanation. The court emphasized that while preliminary views may be disclosed for comment, a final decision must not be made before considering all relevant evidence and arguments.
On the standard of review, the court acknowledged the ombudsman's discretion to determine the appropriate standard but held that the standard applied in this case was unreasonable and irrational. The ombudsman had adopted a normative, perfectionist standard that failed to accommodate legitimate differences in clinical opinion and practice, lacked clarity, and risked arbitrary application. The choice of clinical advisor and reliance on non-peer-reviewed research further undermined the reasonableness of the standard.
Regarding alternative remedies, the court found the ombudsman's decision to investigate was unlawful due to the absence of a reasoned decision considering Mrs Pollard's personal circumstances and the availability of legal remedies. The ombudsman’s assessment was superficial and did not meet the statutory requirement to consider whether it was reasonable to expect the complainant to pursue other remedies such as litigation.
Overall, the court held that the ombudsman's procedural failures, predetermination, and failure to properly assess alternative remedies rendered the decision to investigate unlawful and required quashing.
Holding and Implications
The appeal is allowed. The court set aside the order of Judge Lewis and substituted an order quashing the ombudsman's decision to investigate the complaint.
The direct effect is that the ombudsman's investigation and its conclusions are nullified due to procedural unfairness, predetermination, and failure to properly consider alternative remedies. No new precedent was established beyond clarifying the application of procedural fairness, the limits of the ombudsman's discretion, and the necessity of a reasoned decision on alternative remedies within the statutory framework.