“(1A) Where the Commissioner proposes to conduct an investigation pursuant to a complaint under section 3(1A), he shall afford- (a) to the family health service provider, and (b) to any person by reference to whose action the complaint is made (if different from the family health service provider), an opportunity to comment on any allegations contained in the complaint. … (2) An investigation shall be conducted in private. (3) In other respects, the procedure for conducting an investigation shall be such as the Commissioner considers appropriate in the circumstances of the case, and in particular— (a) he may obtain information from such persons and in such manner, and make such inquiries, as he thinks fit, and (b) he may determine whether any person may be represented, by counsel or solicitor or otherwise, in the investigation.” (b) to any person by reference to whose action the complaint is made (if different from the family health service provider), (a) he may obtain information from such persons and in such manner, and make such inquiries, as he thinks fit, and (b) he may determine whether any person may be represented, by counsel or solicitor or otherwise, in the investigation.”
“The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. An essential factor of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.”
“[t]he intended width of these discretions is made strikingly clear by the legislature”
“The essential requirement, recognised both by section 11 of the Act, and by the common law, is that the gist of the allegations be given with sufficient particularity to enable the person concerned to have a meaningful opportunity to comment upon the allegations.”
“Pre-determination arises when a judge or other decision maker reaches a final conclusion before he or she is in possession of all the relevant evidence and arguments.”
“There is nothing objectionable in a judge setting out his or her provisional view at an early stage of proceedings, so that the parties have an opportunity to correct any errors in the judge's thinking or to concentrate on matters which appear to be influencing the judge. Of course, it is unacceptable if the judge reaches a final decision before he is in possession of all relevant evidence and arguments which the parties wish to put before him. There is, however, a clear distinction between (a) reaching a final decision prematurely and (b) reaching a provisional view which is disclosed for the assistance of the parties.”
“The purpose of the Health Service Commissioner … is to adjudicate over complaints and provide redress by making findings and recommendations. It is, in my judgment, clear that Parliament was not seeking to create a parallel jurisdiction to courts and tribunals, which jurisdiction should apply the same principles by reading over established legal concepts into the language of various Acts governing the jurisdiction of the ombudsmen.”
“As a matter of principle, it is for the ombudsman to decide and explain what standard she applies before making a finding of a failure in a service. That standard as defined will not be interfered with by a reviewing court unless it reflects an unreasonable approach.”
“It is for the Ombudsman to decide and explain what standard he or she is going to apply in determining whether there was maladministration, whether there was a failure to adhere to that standard, and what the consequences are; that standard will not be interfered with by a court unless it reflects an unreasonable approach.”
“The Secretary of State cannot fetter his discretion. By declaring a policy he does not preclude any possible need to change it. But then if the practice has been to publish the current policy, it would be incumbent upon him in dealing fairly to publish the new policy, unless again that would conflict with his duties.”
“[W]e will assess the service provided against the Ombudsman’s Principles, and relevant standards for the service at the time of the matters under investigation (such as GMC, NICE and/or local policies).”
“It is a qualified prohibition but it permits the Ombudsman to be satisfied “that in the particular circumstances, it is not reasonable to expect that person to resort or to have resorted to” the alternative remedy, litigation. Particular circumstances need not be unique to an individual or family. They can arise frequently, as in the Ombudsman's experience they do. Particular circumstances can include the unwillingness of individuals to litigate, their inability to do so, their wish to have their complaint determined in all its aspects, and not having monetary compensation at the forefront of their mind.”
“The Commissioner accepted that the complaint should be investigated because Mrs R said that she was not seeking monetary redress but only wanted to know what had gone wrong. I agree that that was a proper basis on which to undertake the investigation.”