Kay, R (on the application of) v Health Service Commissioner [2008] EWHC 2063 (Admin)

[2008] EWHC 2063 (Admin)

Case No CO/3708/2007

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 11th July 2008

Strand

London WC2A 2LL

B e f o r e:

MRS JUSTICE DOBBS

Between

THE QUEEN ON THE APPLICATION OF JULIE KAYClaimant

Between

HEALTH SERVICE COMMISSIONERDefendant

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

Mr D Wolfe (instructed by Public Law Solicitors) appeared for Claimant

Mr J Maurici (instructed by Beachcroft LLP) appeared for Defendant

J U D G M E N T

[1]MRS JUSTICE DOBBS: The applicant, through her father, challenges the decision of the Health Service Commission ("the Ombudsman"), dated 19th March 2007 to(i) to refuse to provide Mr Kay with copies of documents provided by the National Health Service Trust, which are not deemed to be relevant to a determination of a complaint before the ombudsman by virtue of section 15(1)(a) of the Health Service Commissions Act 1993, and

(ii) for requiring an undertaking from Mr Kay to use such documents as may be released only for the purpose of these complaints. The Background

[2]The claimant, Julie Kay, is 41. She has severe autistic spectrum disorder, epilepsy and learning disability. She does not have legal capacity and this matter is pursued through her father and litigation friend, Mr Kay.

[3]The background is set out in the lengthy statement of Mr Kay, dated 30th April 2007 (pages 92 to 117 of the trial bundle) and summarises as follows. The claimant has been under the care of one or other consultant psychiatrist employed by the Oxfordshire Learning Disability NHS (that is the interested party). Her parents had become increasingly concerned, over a period of time, about the use of anti- psychotic and anti-depression medication by the consultant who had taken over the care of the claimant in the spring of 2003, in response to the claimant's challenging behaviour. They first raised concerns in about August 2003, at first informally, and then through the formal complaints procedure. The complaints were not upheld and in May 2004 they asked the Trust's complaints manager for what is known as an "Independent Review Panel". This request was refused by the Convener who recommended a conciliation meeting with the consultant involved. Conciliation did not work and with the assistance of the Independent Complaints Services, they submitted their complaints to the ombudsman on May 18th 2005.

[4]The essence of the complaint focused on the stark contrast between the treatment by the consultant who had taken over the care of the claimant and his predecessor, the latter who had focussed on reduction of medication and taken an holistic approach, taking very much into account environmental factors. The complaints investigated were:(a) that the medication prescribed from May 2003 to April 2004 was inappropriate;

(b) that the consultant failed inappropriately to involve the parents in decisions about the claimant;

(d) that their complaint to the Trust was not handled properly. Mr Kay has made other complaints, but as they have not been through the complaints procedures, the ombudsman declined to investigate them. Mr Kay was unhappy with this approach. He was also unhappy about the expert to be used by the ombudsman. The investing officer had taken advice from a general psychiatrist initially, but Mr and Mrs Kay felt that someone experienced in autism ought to advise the ombudsman. The ombudsman responded by instructing an expert in autism on whose advice she relied in the draft report.

[5]The second area of concern was that Mr Kay wished to have access to all potentially relevant information so that he could make as strong a case as possible on his daughter's behalf. He was concerned that the Trust may not have presented all the relevant information or might have done so in a misleading way. This concern arose out of an incident that the treating consultant which gave rise to worry that the records might be incomplete or misleading.

[6]This issue was discussed with the CAS case worker who contacted the investigating officer, to ask for a copy of the papers sent by the Trust. This request was put in writing on 15th November 2005. A letter dated 19th December 2005 from the Ombudsman Data Protection Officer indicated that Mr and Mrs Kay were entitled to receive information which amounted to personal data about himself. She would have to take legal advice about whether the information on his daughter could be released. Mr Kay made a request for personal data about himself on 28th December and received a letter dated 14th February 2006 confirming that he was entitled to such information but not information, about his daughter, unless she provided her consent. As she did not have the capacity to consent, the person to whom she had granted an enduring Power of Attorney might be able to access personal data about her. Mr Kay says his daughter does not understand what is going on and cannot give an enduring Power of Attorney. However, as is conceded in court, there was another route to access the claimant's personal information via the Court of Protection.

[7]Mr Kay consulted public law solicitors about the problem. They wrote to the Data Protection Officer on 21st April 2006, explaining why the information was required. This letter was responded to on 22nd June by the Deputy Chief Executive setting out reasons why disclosure could not be made. It indicated that a copy of the draft report would be forthcoming and that the ombudsman had considered whether there was any further information not included in the report that should be disclosed to him.

[8]The draft report was sent on 28th June 2006. The preliminary view is that none of the complaints are to be upheld. There was some mixed concern expressed in the draft about the current consultant's prescribing practice, in that it did not follow best practice, but it was not felt to be a sustainable complaint, because most psychiatrists still prescribed in the way he did.

[9]The observations in the draft report, when set against the background of their dealings with the consultant in question, raised the Kay's concerns that the records relied on by the ombudsman were either incomplete or misleading. The solicitors wrote on 17th August, repeating the request for copies of the records. At the same time the solicitor wrote to the Complaints Commissioner to explain the issue and the stage reached. This avenue, for legal reasons, has not been pursued.

[10]The solicitors also wrote to the Trust itself for the records, relating to the Kays' daughter's care, not only for the purposes of dealing with the complaint, but also in relation to dealing with care decisions they needed to make on her behalf. The Trust has declined to provide the records.

[11]As a result of some observations made by Mr Kay and, after releasing the draft report, the investigating officer made some further enquiries, asking for further information to be provided by the Trust and asking Mr Kay, as the person able to give consent on his daughter's behalf, to consent to the medical records from the claimant's general practitioner to be disclosed.

[12]Following disclosure, on 26th October 2006, the ombudsman's investigating officer wrote to say that she thought the prescribing by the consultant between 2003 and April 2004 had been reasonable and that the complaint concerning the prescribing was not to be upheld.

[13]On 1st November 2006, in a letter before claim, the solicitors wrote to the ombudsman, indicating that they should be provided with documents submitted by the Trust. There then followed an exchange of correspondence with the ombudsman's legal representatives, both sides setting out their respective positions. In a letter dated 12th January 2007, the ombudsman indicated that she would disclose documents in her possession on which she was minded to rely in determining the complaint or which may influence her decision. This was conditional on an undertaking being given that the confidential material would only be used for specific purpose of the investigation.

[14]Mr Kay was unhappy about the restriction as he felt there may be material relevant to an application in the Family Division to determine what was in his daughter's best interests. It now turns out that he has other avenues he may wish to pursue such as professional negligence and the Healthcare Commission.

[15]In a letter dated 19th March ("the decision letter") the ombudsman's solicitors identified the document to be disclosed and the classes of documents which were not to be released. The three categories identified as not being discloseable were:(i) documents relating to a period which is outside the period to which the complaint relates, including clinical notes, records, not relating to the period in respect of which it is alleged that medication prescribed for the claimant was inappropriate. Such notes/records are not relevant to the determination of the complaint it was said. Mr Kay, in his statement, advances a number of reasons why such documents are in fact relevant, because access to the records would show the practice of the previous consultant, who did carry out best practice, the information of which should have influenced the subsequent consultant's approach.

(ii) documents referring to matters which are not the subject matter of complaint to the ombudsman such as the determination of the claimant's tendency at Mereland Road because they are not relevant to the determination of the complaint. Mr Kay asserts in his statement that issues such as their daughter's move from the property may be relevant, given the surrounding circumstances of the need for the move. The termination of the tenancy came at a time when there were changes in the claimant's behaviour and a change in the treatment regime.

(iii) documents which constitute personal or sensitive data of others; such documents not being relevant to the determination of the complaint. For example, in the case of a note of a meeting of which one of the items discussed related to the claimant and other items did not. Only the item relating to the claimant had been disclosed. Further example is the supervision record of a member of staff which did not relate to matters investigated.

[16]Mr Kay contends that the supervision record of the member of the staff may have made reference to inadequate experience with regards to looking after someone with autism and that this might be relevant. The parents' belief is that the claimant's behaviour is critically linked to the environment, including the approach adopted by staff and thus engages issues around their competence, training and experience. This is also bound up with the process of the determination of the tenancy at Mereland Road. The Claimant's Submissions

[17]The claimant's submissions are set out at length in the grounds and correspondence in the two skeleton arguments. The court has read all the papers in the case, but has sought to distil the arguments, and did so in court, with counsel for the claimant agreeing with the formulae. Issue 1:

[18]The ombudsman's approach to disclosure was wrong. She applied the test in Turpin wrongly. The test, when properly applied, means that the ombudsman should disclose everything that was not ruled out to be logically irrelevant. It was in any event inappropriate for the decision maker to be deciding what may be relevant. The ombudsman should disclose all the material provided by the Trust, save for that material that is so obviously irrelevant and allow the parties to examine the material and make submissions about what material they considered to be relevant to their case and the ombudsman's task. To do otherwise is to ignore the requirements of basic procedural fairness, namely that fairness requires disclosure unless there is clear statutory or other barrier.

[19]A point is made as a sideline, and not as a discrete ground, namely that if the claimant had capacity, she would be able to have access to personal information in any event by another route. However, it is conceded that her not having capacity did not preclude the obtaining of the material as previously indicated via the Court of Protection - a route which has not been pursued by Mr Kay. Issue 2:

[20]It is argued that the statutory obligation in relation to disclosure, under section 15 of the Act, is only aimed at the ombudsman. It cannot bind the recipient of the information. There is no further obligation apart from the general obligation for confidentiality. Any restrictions arising from the most general observations would need to be balanced against competing requirements such as pursuit of the claimant's interest, which is submitted would be justified. Moreover the ombudsman has not identified any power which he has to seek such an undertaking and how she would police or enforce it.

[21]It is submitted that it is wrong in principle for material such as the claimant's medical records which the ombudsman had agreed to be provided to Mr Kay for a period of December 2002 to October 2004 to be disclosed, but then for Mr Kay to be prevented from using the material to pursue the claimants interest in other legitimate ways, including support for a declaration as to her best interest and proceedings in the Family Division. The ombudsman is acting unlawfully therefore. The effect of the undertaking was that Mr Kay would not be able to get legal aid or institute proceedings, as he would be unable to use the information or the documents to support his application for the case. The Defendant's Submission

[22]By way of preliminary observation the defendant makes the following points: (i) the question for the ombudsman in each case was whether there had been a failure of service provided by the Trust. The exercise of the discretion of the ombudsman involves a high degree of judgment. Consequently an effective challenge of the exercise of that discretion will always be difficult (see R v Parliamentary Commissioner ex parte Dyer

[1994] 1 WLR 621

, at 626 per Simon Brown LJ. Moreover, the issue whether any given set of facts amounts to a fail service is for the ombudsman alone (see R v Parliamentary Commissioner for Administration ex parte Balchin [1997] JP 917.

[23]Although set out in the grounds of resistance, the skeleton argument and correspondence, the defendant's submissions can be summarised as follows: Issue 1

[24]The test propounded by the claimant is not the test in Turpin. The test in Turpin is clear. It is also clear that the court envisaged that the ombudsman would make the decision as to relevance. This involves an exercise of judgment, but that was envisaged in Turpin. What is fair is heavily context-dependent and there are two key elements to be taken into account: the statutory and the factual context of the present investigation.

[25]Dealing with the statutory provisions, it is submitted that it is clear, and the case of Dyer is support for the proposition, that Parliament intended to give wide discretion to the ombudsman, hence the breadth of the provisions. It is noted that section 11 allows the body complained of to comment and that is the only express provision in relation to the body investigated. However, the ombudsman has in her procedures allowed the complainant several opportunities to comment. The procedure under that section 11(3) is entirely in hands of the Commissioner and she has a very wide discretion as to procedure, unlike the court. The procedure is inquisitorial and not adversarial litigation. The ombudsman is using investigative powers. It is not intended to replicate litigation in any meaningful way. It is not like a court, and her position is not akin to one of a judge. The ombudsman is an investigator and not adjudicator, and her findings are not binding on the parties, and she has no powers in the Act for enforcement of the report.

[26]Under her powers the ombudsman is entitled to see everything. Privilege and public interest do not apply save in relation to section 16 of the Act. Thus it is, that section 15 comes into play, and restricts what can be disclosed, and the use to which that disclosed material can be made.

[27]Dealing with the context of the case, the defendant submits that the decision in relation to disclosure has to be set against the four areas which the ombudsman decided to investigate. These have already been set out earlier.

[28]In relation to the first class of documents, which would include the medical records pre-December 2002, it is submitted that it is not logical to assume that the notes preceding that date may influence the ombudsman's decision, because as the independent assessor has already looked at the notes and formed a view as to relevance, which the ombudsman has relied on. This was done with full knowledge of the nature of the complaint, including the issue about the failure of Dr Stephenson to take environmental issues into account when treating the claimant.

[29]The problem facing the court is that because the claimant has declined to have disclosure, the court is not in a position to gainsay the ombudsman's undertaking that disclosure has been made in accordance with Turpin, including taking into account the need to err on the side of disclosure unless there is good reason not to. The reason for withholding the other material have been set out in the decision letter.

[30]It is clear from the preliminary findings of the ombudsman that it is accepted that the treatment by the previous consultant found favour with the claimant's parents and that it was the contrast of treatment of the new reconsultant that caused concern, particularly with regard to prescribing and also for failing to consider environmental issues. This is expressed in the finding that the prescribing was not best practice and also in the concern expressed that the consultant did not go on to take a more holistic approach. It is further enforced by the recommendation to be made for a multi-disciplinary approach. There is nothing else therefore in the three classes of excluded material that could influence that decision and certainly nothing, as the claimant contends, to show that the doctor fell below acceptable standards - which is what Mr Kay is intent on showing.

[31]If the claimant had accepted disclosure, then Mr Kay and the legal advisors would see the detail of the assessor's report and any other documents and would have some of the questions answered which they pose to the court. The claimant's position is based on conjecture therefore and nothing more. The test has been properly applied and the claimant has not shown there has been any unfairness.

[32]The defendant also notes that bodies about which complaints have been made tend to open their files to the ombudsman, knowing the ombudsman's powers to request documents. The claimant's contention that they choose what they have consider to be relevant is inaccurate.

[33]The ombudsman is constrained by statutory prohibition on disclosure. Disclosure of irrelevant documents would be a breach, as they would not be disclosed to the purposes relevant to the investigation. There is nothing unusual about the person having to take a decision about relevance, the police and prosecution have to reach such decisions about relevance in relation to criminal proceedings and disclosure.

[34]There would be huge practical difficulties if the tests suggested by the claimant were to be upheld, not just about convenience, but whether the system of investigation could actually practically operate. The purpose of the Act and the scheme is to provide remedy for justice occasioned by maladministration. There are some very large scale investigation which already take a number of years. They would become wholly unwieldy. It is important to bear in mind that the ombudsman needs to reach a conclusion in a reasonable time.

[35]Disclosure is made in the spirit of co-operation and the ombudsman rarely has to use the powers of compulsion. There is usually over-disclosure because the bodies know that section 15 will apply and there will be restrictions as to what can be done with it. Attitudes will change and funds and resources will be needed to be spent by the ombudsman and others which is not in the public interest. It is submitted that sufficient information was available to enable further representations on the merits and why there should be further disclosure.

[36]The inevitable consequence of the claimant's approach is that in every case there has to be a procedure for the court to go through everything disclosed. It is not a useful or sensible approach for judicial review proceedings.

[37]Dealing very briefly with the issue of discrimination, it is submitted that there is none for the reasons set out in the correspondence between the parties. It matters not for the purpose of section 15, by which the ombudsman is bound, whether the claimant has capacity or not. Issue 2: The Undertaking

[38]The first submission is that section 15 includes recipients of information. It is clear any information coming into the possession of the ombudsman is not discloseable save as permitted under section 15(1), namely for the purposes of the investigation and any report being made in respect of it. It is submitted that the purpose of section 15 is clear. The ombudsman has wide powers to obtain information and thus it is necessary to counterbalance that and to apply section 15, to ensure that the information and documents obtained are only used for the purpose of the investigation and report. It would be denuded of any purpose if she is so restricted, but once the information is passed on, the complainant is free to use it and the documents for other purposes.

[39]If the claimant's submission that an undertaking is not needed, then the answer is that Mr Kay has made it crystal clear that he does not consider himself to be bound by section 15 and that the information can be used for family proceedings, health care and professional negligence proceedings. In those circumstances, having regard to her own duties that information should only be used for the investigation and the report, the ombudsman is entitled to the additional assurance of an undertaking.

[40]In the alternative, if the court finds that section 15 does not cover the claimant, it is submitted that the ombudsman can only provide to a complainant documents she has obtained, to the extent that it is only for purpose of the investigation or report. So she needs to be satisfied therefore, that it will be only used for the investigation and the report, in order to ensure that she complies with her own duty. Thus she is entitled, under the wide powers as to how to conduct her procedures to require an undertaking from the complainant, to only use the information for that purpose, as that is the only purpose she can disclose it for. This is particularly important given that Mr Kay has indicated that he might use it for other purposes.

[41]The claimant was offered the opportunity for discussion in relation to amending the wording of the undertaking and this has been rejected without more. Reference to that can be found in the letter of 3rd April 2007 (at page 319 of the bundle).

[42]It is submitted that there is no need for reluctance on the part of the claimant to give the undertaking. He is quite able to conduct other proceedings without prejudice. Court procedures would allow him disclosure, and complaints to the Healthcare Commission would also allow him to ensure that requests were made for the documentation he had seen by virtue of the disclosure by the ombudsman.

[43]Reliance is placed on paragraphs 69 of the case of Turpin, where the principle of giving an undertaking is contemplated and it is submitted that it matters not that the facts in Turpin are different. Moreover the doctrine of implied powers, namely that statute confers implied powers necessary to perform function under the Act, applies. Judgment

[44]The statutory framework, the relevant sections are sections 3(1) to (2):

"(1) On a complaint duly made to a Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of— (a) a failure in a service provided by a health service body. (b) a failure of such a body to provide a service which it was a function of the body to provide, or (c) maladministration connected with any other action taken by or on behalf of such a body. the Commissioner may, subject to the provisions of this Act, investigate the alleged failure or other action. (2) In determining whether to initiate, continue or discontinue an investigation under this Act, a Commissioner shall act in accordance with his own discretion."

Section 9(3) reads:

"The complaint shall not be entertained unless it is made— (a) by the person aggrieved, or (b) where the person by whom a complaint might have been made has died or is for any reason unable to act for himself, by— (i) his personal representative (ii) a member of his family, or (iii) some body or individual suitable to represent him."

Section 11(1) to (3) reads:

"(1) Where a Commissioner proposes to conduct an investigation pursuant to a complaint under this Act, he shall afford— (a) to the health service body concerned, and (b) to any other person who is alleged in the complaint. to have taken or authorised the action complained of 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."

Section 12(1) reads:

"Evidence (1) For the purposes of an investigation a Commissioner may require any officer or member of the health service body concerned or any other person who in his opinion is able to supply information or produce documents relevant to the investigation to supply any such information or produce any such document."

Section 14(1):

"A Commissioner shall send a report of the results of an investigation by him— (a) to the person who made the complaint (b) to any member of the House of Commons who to the Commissioner’s knowledge assisted in the making of the complaint (or if he is no longer a member to such other member as the Commissioner thinks appropriate) (c) to the health service body concerned. (d) to any person who is alleged in the complaint to have taken or authorised the action complained of (e) if the body concerned is not a District Health Authority for a district in England, to the Secretary of State, and (f) if that body is a District Health Authority for a district in England, to the Regional Health Authority whose region includes that district."

Section 15 of the Health Commissioners Act 1993:

"(1) Information obtained by a Commissioner or his officers in the course of or for the purposes of an investigation shall not be disclosed except— (a) for the purposes of the investigation and any report to be made in respect of it. (b) for the purposes of any proceedings for— (i) an offence under the Official Secrets Acts 1911 to 1989 alleged to have been committed in respect of information obtained by virtue of this Act by a Commissioner or any of his officers, or (ii) an offence of perjury alleged to have been committed in the course of the investigation (c) for the purposes of an inquiry with a view to the taking of such proceedings as are mentioned in paragraph (b), or (d) for the purposes of any proceedings under section 13 (offences of obstruction and contempt). (2) Neither a Commissioner nor his officers shall be called on to give evidence in any proceedings, other than proceedings mentioned in subsection (1), of matters coming to his or their knowledge in the course of an investigation under this Act."

[46]Before looking at the issues the relevant parts of the decision letter of 19th March 2007 need to be set out. Paragraphs 9 and 10 of the decision letter read as follows:

"The Ombudsman proposes to disclose the following documents obtained in the course of her investigation: (a) the report of the External Professional Adviser. (b) documents cited or referred to in the Ombudsman's draft report and the report of the External Professional Adviser. These include: • the report of Dr Mary Myers. • the notes of telephone conversations with the Kays and/or their advisers including telephone conversations relating to the care of Julie Kay and/or the subject matter of the complaint to the Ombudsman. • correspondence relating to the obtaining of a second opinion from Professor Bailey. • correspondence passing between Mr and Mrs Kay and other (including correspondence relating to the care of Julie Kay and/or the subject matter of the complaint to the Ombudsman. • internal Trust documents relating to consideration of the subject matter of the complaints to the Ombudsman. • the conclusions of the clinical adviser, as reported to the (internal) Convenor. • the Trust's response to the Ombudsman's report for information. (c) the following documents (most, but not all, of which are also documents which are referred to in the Ombudsman's draft report and the report of the External Professional Assessor): • clinical notes/records relating to Julie Kay for the period 18 December 2002 to 4 May 2004. • notes of meetings to discuss the care of Julie Kay held in that period and attended by Dr Stephenson. • correspondence passing between Dr Stephenson and General Practitioners and others relating to the care of Julie Kay. In short, the Ombudsman will disclose all the documents on which she is proposing to rely or which may influence her decision on the complaint to her. 10. The Ombudsman proposes not to disclose the following documents obtained in the course of her investigation: (a) documents relating to a period which is outside the period to which the complaint to the Ombudsman relates. By way of example, this would include clinical notes/records not relating to the period in respect of which it is alleged that the medication prescribed for Julie Kay was inappropriate: such notes/records are not relevant to the determination of the complaint to the Ombudsman. (b) documents referring to matters which are not the subject of the complaint to the Ombudsman. An example of this would be the termination of Julie Kay's tenancy at Mereland Road; such documents are not relevant to the determination of the complaint by the Ombudsman. (c) documents (or those parts of documents) which constitute personal data or sensitive personal date of others; such documents are not relevant to the determination of the complaint by the Ombudsman. By way of example, in the case of a note of a meeting at which one item discussed related to Julie Kay but other items did not, only the entry relating to Julie Kay would be disclosed. A further example is a supervision record of a member of staff which did not relate to the matters investigated. In short, the Ombudsman will not disclose those documents on which she does not propose to rely or which will not influence her decision on the complaint made to her."

The Issues

[47]Did the ombudsman err in not giving further disclosure in seeking to withhold the classes of documents indicated in the letter of 19th March?

[48]The claimant has relied on a number of cases to establish the duty of fairness. These are set out in paragraphs 34 to 39 of the claimant's first skeleton argument and there is no dispute about the principle.

[49]The defence rely on another passage from the case of Dyer, which in turn quotes from the case of Lloyd v Mahon. (This is to be found in the defendants skeleton argument at paragraph 35). The point made is that fairness is context- dependent. It is against this background that one looks at the test in Turpin. That case concerned a different ombudsman, the Commissioner for Local Administration, but involved similar provisions. The case of Turpin is reported at

[2003] LGR 133

, alternatively

[2001] EWHC Admin 503

and was a decision of Collins J. Paragraphs 62 to 64 and paragraphs 69 read:

"62. I turn finally to ground three. Section 32(2) of the Local Government Act 1974 provides: 'Information obtained by a Local Commissioner, or any officer of either Commission, in the course of or for the purposes of an investigation under this Part of the Act shall not be disclosed except (a) for the purposes of the investigation and of any report to be made under section 30 or section 31 above.' 63. Section 28(2) provides: 'Every such investigation shall be conducted in private, but except as aforesaid the procedure for conducting an investigation shall be such as the Local Commissioner considers appropriate in the circumstances of the case; and without prejudice to the generality of the preceding provision the Local Commissioner may obtain information from such persons and in such manner, and make such inquiries, as he thinks fit, and may determine whether any person may be represented (by counsel or solicitor or otherwise) in the investigation.' 64. Nothing is there said to prohibit disclosure of information which has been obtained in the course of or for the purposes of an investigation. Indeed, it seems to me to be implicit in section 32(2) that any disclosure considered necessary or desirable of such information can be made. It is perfectly plain that the information in question was obtained for the purposes of an investigation, albeit the investigation was not actually taking place. As I say, it was an investigation whether there should be an investigation. The law as to the requirements of fairness in conducting an investigation is, as it seems to me, clear. The general rule is that a person or body which has to make a decision based on an issue raised by one person against another should normally disclose the material on which it is going to rely or which comes into its possession which may influence its decision to each of the parties so that each party can know what material is available, what matters are likely to be held against them and whether it is necessary for that party to itself put forward material or to make representations to deal with such matters. If that is not done, it is clear that there is a risk – I put it no higher – that injustice will be occasioned to such party... 69. One cannot deal with every possible situation and it must be a matter left always to the discretion of the Ombudsman, but it is a discretion which ought, prima facie, in my judgment, to be exercised in favour of disclosure unless there are good reasons not to disclose. I see no justification for giving the Ombudsman a general right to refuse to disclose whatever the circumstances. It is not suggested here, no could it be suggested, that there was any good reason not to give the interview notes to the Turpins, no doubt on an undertaking that they would only be used for the purposes of the complaint which they were making to the Ombudsman."

[50]It is clear that the statutory framework gives the ombudsman wide powers and discretion. This is then balanced by the restriction on disclosure, which is to be conducted in the light of the test set out in Turpin, taking into account the further observations in paragraph 69. In effect the test sets out what procedural fairness demands in this context.

[51]The ombudsman has indicated that the test has been carried out faithfully. The claimant asserts that it has not been, because there may be material that has been overlooked by the assessor and the ombudsman which may influence their decision, thus all the Trust records state that the obviously relevant should be disclosed.

[52]I do not accept the claimant's interpretation of the test in Turpin. One only has to look at the submission more closely to see that it is wider than that set out in Turpin - for it is argued that the ombudsman should disclose all but the obviously or logically relevant to allow the parties to make submissions as to which documents may be relevant to her decision. That in itself shows the flaw, for it accepts implicitly that there will be documents which are not relevant to her decision.

[53]The procedure advocated by counsel for the claimant would mean that the court would be imposing a procedure on the ombudsman, when Parliament had clearly intended that she established her own procedures. Moreover the undesirable ramifications of the procedures suggested by counsel for the claimant are evidenced.

[54]As can be seen from the extract quoted from the decision letter, the ombudsman does, in accordance with Turpin, set out the reasons for withholding the three classes of material. The reasons appear sound. I am not persuaded, because it is mere speculation in the absence of seeing the content of the significant disclosure which is ready to be made to the claimant, that withholding of material, particularly in the first two categories, is unfair. As indicated, given the preliminary decision of the ombudsman, it is clear that the issues of the difference between the treatment applied by the former consultant and the present consultant were taken on board and the present consultant was found(a) not to have followed the best practice with regards to prescribing and

(b) not to have taken a more holistic approach when he should have done. As a result a recommendation for a multi-disciplinary approach is to be made.

[55]It is to be noted from the documentation before the court, that there has been a significant improvement in relation to the claimant's situation and that she is still being treated by the same consultant complained of.

[56]It is difficult to see how the earlier records could influence the ombudsman's decision, particularly as the process under the previous consultant was, as is clear from Mr Kay's evidence, a progressive and developing one. Thus, it is logical that the more recent record will give a better picture of the regime that was in place when the second and present consultant took over.

[57]With regards to the second class of documents, again it is nothing more than speculation, that whatever documentation there is with regard to the determination of the tenancy would shed any light on the conduct of the consultant concerned. Counsel for the claimant accepts that the decision regarding the third group of documents would seem to be unassailable, save for suggesting that if the material contained any reference to the present consultant, then the information would be discloseable. Again this is speculation. On the face of it, this category of document is quite properly withheld.

[58]For these and the other reasons advanced by the defendant, I do not find in the claimant's favour on the first issue. As to the issue of discrimination, it takes the matter not further, and counsel properly concedes that it is not been pursued as a discrete ground. The ombudsman is governed by the statutory regime and that regime makes no distinction as to capacity and does not discriminate against the claimant. I need say no more on this. Issue 2

[59]I turn to the question of the undertaking. The terms of section 15 have already been set out. I take section to mean what it says, namely that information disclosed to the ombudsman in the course of or the purpose of the litigation shall not be disclosed except for the purposes of the investigation and any report to be made in respect of it. In my judgment, that applies to those receiving the information from the Commission itself.

[60]This is a jurisdiction where the majority of the information obtained is likely to be confidential and section 15 is clearly in place to protect the confidentiality of the material. It would be an absurd position if the ombudsman was restricted as to the situations in which she could disclose the material, only for the material to be used by others for reasons outside the ambit of the ombudsman's investigation and report. It cannot, in my judgment, have been the intention of Parliament that a person could then use the information as he chose, relying on some justification for the use, the damage having been done in the use of the material before any decision as to justification has been taken.

[61]If I am wrong about the effect of the section, I take the view that the Commissioner was entitled to require an undertaking:(i) to ensure that she operated within the letter and the spirit of the statutory framework;

(ii) particularly so, given Mr Kay's expressed intention to use the material in other proceedings. The ombudsman has a wide discretion as to how to conduct an investigation and that must include steps necessary to secure adherence with the letter and spirit of the statutory framework.

[62]It is to be noted that those representing the claimant were not even prepared to give an undertaking without prejudice to a challenge as to the unlawfulness or unreasonableness of the requirement, such that both the court and the claimant would have been in a better position to determine the disclosure issues. Further, even though an offer was made to discuss the amendment of the wording of the undertaking, the claimant through her litigation friend and legal advisers was not prepared to even consider a discussion about amendment of the words. I find that there is no prejudice or unfairness towards the claimant in holding that the ombudsman did have power to require an undertaking. Moreover, the ombudsman has made clear what Mr Kay is able to do, should he give the undertaking. This was set out by counsel for the defendant during the hearing. The undertaking would allow him to refer to the existence of the documents. He knows that there are medical records and meeting notes of certain dates and this would be sufficient to allow him to seek disclosure, either pre-action or standard disclosure and, if the documents are disclosed in the course of those proceeding, they can be used in those proceedings subject to the implied undertaking not to use it for other purposes.

[63]The powers of the Healthcare Commission are such that they can request documents. Mr Kay could ask them to make sure that they get the list of documents which he has put forward, being documents he cannot produce, as he is subject to the undertaking. In those circumstances, it seems to me that there is no barrier, as has been suggested to the claimant bringing a claim in the courts or of lodging a complaint with the Healthcare Commission. The claimant would be in a particularly advantageous position, knowing in advance what documents or class of documents exist, in advance of any disclosure regime coming into play. It follows that for those and other reasons rehearsed earlier this ground is also dismissed.

[64]I note that if the claimant were to accept disclosure, then there is an opportunity for further submissions to be made, including submissions for further disclosure and, of course, there is a remedy available in the light of the final report. In effect the claimant's avenues have not been closed because of the decision of this court. It follows from the foregoing that this application for judicial review is refused.

[65]MR MAURICI: I am grateful, my Lady. On the issue of costs, I ask for an order that the claimant pay the defendant's costs, that is subject to the normal community funding.

MRS JUSTICE DOBBS: Yes, Mr Wolfe costs, legal aid funding?

[67]MR WOLFE: My Lady, I cannot resist the principle of no order. The claimant is legally aided, Miss Julie Kay. I cannot resist the ordinary order that the claimant pay the defendant's costs subject to assessment of section 11 of the Access to Justice Act.

[68]Separately I need details of the claimant's publicly funded costs, the second limb.

MRS JUSTICE DOBBS: Yes.

[70]MR WOLFE: My Lady, I would also ask for permission to appeal against my Ladyship's judgment, on both limbs of the permission test. The first of which is the real prospect of success and the second of which is other compelling reason. Can I just develop that slightly? It arises both in relation to Issue 1, in other words the ambit meaning of the Turpin test, my learned friend raised the possibility of whether the Turpin test is actually in the event too high. In my submission, the real prospect of success in the claimant's submission that the Turpin test should be (inaudible). My submission has developed it. In relation to the second limb, the second issue there are in effect two parts to it. There is what your Ladyship is right in saying section 15(1) binds recipients and then separately from that my Ladyship is right in saying that the ombudsman have the power to request or impose an undertaking in relation to each of those two or three issues. In my submission, there are real prospects of success in an appeal, straightforward issue on account.

[71]In relation to the second limb of the basis of permission to appeal and other compelling reason, that arises, your Ladyship knows independently of real prospect of success and in effect that the other compelling reason here is one generally in play, that limb which is the clear wide public interest for the resolution of the issue, for the issue which arise in this case, but my learned friend's submission put it, not just for the ombudsman but the brother ombudsman.

[72]MRS JUSTICE DOBBS: You have to speak up a bit. In the resolution of what?

[73]MR WOLFE: In the resolution issued by this ombudsman in her jurisdiction but also other ombudsmen, as my Ladyship has seen the same provisions apply across a range of ombudsmen jurisdiction. And so in effect the decisions on those issues have a much wider impact across potentially all investigations conducted by those ombudsmen people. That is why I say there is a compelling and other reason in the grant of permission so the Court of Appeal can clarify once and for all what the Turpin test means and what the ombudsman's obligations are in relation to disclosure of information.

[74]MRS JUSTICE DOBBS: All right. Mr Maurici?

[75]MR MAURICI: My Lady, just four points. First of all, we say that in the light of your Ladyship's judgment there is no real prospect of success in this case. Secondly, in terms of the second limb, obviously the judgment does have implications for other ombudsmen regimes but the reality is that Turpin goes back to 2001 and there have been no other cases. The reality of it not having the wider effects in terms of being a big issue to be resolved. Thirdly, on that same point, in any event, I would say that your Ladyship should leave it to the Court of Appeal to see if they are persuaded about whether there is, despite there being, we say no prospect of success (inaudible), and then fourthly and finally, your Ladyship indicated at the end of the judgment, there are in any event other avenues open to the claimant and that, in my submission, also makes (inaudible). So my lady those are the issues.

[76]MR WOLFE: I rise only in relation to the last point made by my learned friend, which is the other avenue point. In my submission, having not taken as an alternative remedies point in relation to discretionary relief, it does not arise in relation to permission to appeal.

[77]MRS JUSTICE DOBBS: Permission to appeal is sought in this case in relation to both limbs of the test that there is a prospect of success in relation to Issue 1, namely the test in Turpin and Issue 2, which is subdivided into the interpretation of section 15, or alternatively the powers of the ombudsman to require an undertaking. It is said that there is a real prospect of showing that the decision of this court is wrong.

[78]Alternatively, on the basis of other compelling reasons for granting permission to appeal, it is said that there is a claim of wider public interest in the resolution of the provisions regarding various ombudsmen. All are subjected to similar provisions and therefore the decisions have much wider impact across all investigations.

[79]I refuse permission on both grounds, on the basis that there is no real prospect of success. As Collins J himself said in the case of Turpin, the test is quite clear.

[80]In relation to the second issue, again, in my view, there is no realistic prospect of success.

[81]With regard to the second limb - other compelling reasons, as has been noted by Mr Maurici for the defendant, although the judgment has implications for other Tribunals, it is noted, quite rightly, that the case of Turpin goes back to 2001 and there has been no other case which has raised the issue and therefore no wider effect. Also, I agree that it should be for the Court of Appeal to decide if they are persuaded that there is sufficiently compelling reason for a grant of permission to appeal.

[82]For those reasons permission is refused.