Atwood v The Health Service Commissioner [2008] EWHC 2315 (Admin)

[2008] EWHC 2315 (Admin)Case No CO/4804/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/10/2008
Before
THE HON. MR JUSTICE BURNETT
Between
STEPHEN ATWOODClaimantTHE HEALTH SERVICE COMMISSIONERDefendant
Philip Havers QC (instructed by Radcliffes Le Brasseur) for ClaimantJames Maurici (instructed by Beachcroft LLP) for DefendantHearing Hearing dates: 15 September 2008
Judgment
[1]This is an application for judicial review of a report of the Health Service Commissioner [“the Ombudsman”] into complaints surrounding the treatment of John Ambrose who died in January 2002. The report was issued on 15 March 2006. Its author was Tim Saville, a Senior Investigating Officer duly appointed under the provisions of the relevant legislation. Although the report was written by Mr Saville following his investigation, it comprised the Ombudsman’s report. The current Ombudsman is Ann Abraham. Stephen Attwood, [“the Claimant”] is a doctor who treated Mr Ambrose and who was severely criticised in the report. He challenges the report on two bases. First, he contends that the Ombudsman misdirected herself in law because she failed to apply the Bolam test to questions arising out of the clinical decisions he made concerning Mr Ambrose’s treatment and management. Secondly, he makes a series of discrete points directed to the detail of the report, the findings made and conclusions reached by Mr Saville.[2]The Claimant is a consultant gastro-intestinal surgeon who was employed by the Salford Royal Hospitals NHS Trust [“the Trust”] at the Hope Hospital, Salford. John Ambrose was a patient under the care of the Trust who, towards the end of 2001, was found to have a large polypoid tumour at the lower end of his oesophagus. He was then 68 years old. On 15 October 2001, after pre-operative chemotherapy, the Claimant performed a cardio-oesophagectomy (the removal of the lower half of the oesophagus and stomach). Mr Ambrose was discharged from hospital on 7 November 2001 with a tube into his small bowel for feeding and drainage. Mr Ambrose attended out-patients appointments on 11 December 2001 and 15 January 2002. Following the operation he lost a large amount of weight. On 20 January 2002 Mr Ambrose was taken as an emergency to the North Manchester General Hospital. He was not admitted and was in due course sent home having been taken by members of his family to a medical drop-in centre. There they were told that he was very ill and would probably have only weeks to live. Alas he died shortly after he arrived home that same day.

The Complaint

[3]Mr Ambrose’s family subsequently complained to the Trust about the care afforded to Mr Ambrose and also about the quality of communication between those providing the treatment and their patient. The Trust dealt with that complaint internally in the course of 2002. In September 2003, Jim Dobbin MP sought an independent review of the complaint. The Trust rejected that request because it fell outside the time limits applied in the NHS Complaints Procedure. It was in those circumstances that Mr Ambrose’s daughter, Susan, made her complaint to the Ombudsman.[4]Paragraphs 1 and 2 of the report record the complaint in the following terms:
“1. The account of the complaint provided by Mr Horrocks and Miss Ambrose was that after undergoing tests on 4 June 2001 at Hope Hospital, Salford (which is managed by the Trust), Miss Ambrose’s father, Mr John Ambrose, who was then 68 years old, was found to have a large polypoid tumour at the lower end of his oesophagus, which was obstructing his swallowing. After pre-operative chemotherapy, on 15 October Mr Ambrose underwent a cardio-oesophagectomy (removal of the lower half of the oesophagus and stomach). On 7 November, he was discharged from Hope Hospital with a jejunostomy tube (a tube placed in the small bowel for feeding and drainage purposes, which was removed two weeks after his discharge.) He was started on a large dose of steroids, 12mg of Dexamethasone daily, but his GP was not informed of this. He subsequently lost 20kg in weight, and on 15 January 2002, a CT (computerised tomography) scan…was ordered, because it was suspected that cancer might have spread to other parts of his body. However, the CT scan was never performed. 2. On 20 January 2002, Mr Ambrose was taken by emergency ambulance to the Accident and Emergency Department at North Manchester General Hospital which was managed by a separate Trust. He was in an apparently dehydrated state and was having difficulty breathing. He was triaged…and was placed in the blue category, which was the lowest priority category. About an hour after the triage process had been completed, Mr Horrocks and Miss Ambrose left the A&E Department with Mr Ambrose, without his being seen by a doctor. They then took him to a medical drop-in centre in Bury, where a doctor advised them to take him home because he was very ill and also told them that it would probably be only weeks before he died. On arrival back at home, Mr Ambrose collapsed and, although Miss Ambrose carried out mouth-mouth resuscitation, he died shortly afterwards. Mr Horrocks and Miss Ambrose maintain that Hope Hospital had not given them sufficient information about Mr Ambrose’s condition, his treatment and his prognosis. They were therefore not prepared for his death.”
[5]Mr Saville collected together the clinical notes relating to Mr Ambrose and obtained comments from the Trust on the substance of the complaint. He interviewed the Senior House Officer who had seen Mr Ambrose on 11 December 2001 and also interviewed the Claimant. To assist him with his task, he appointed two independent assessors. They were Mr Shorland Hosking, a consultant surgeon with a speciality in upper gastrointestinal surgery and Mrs Susan Fox, a senior nurse. The Claimant relied upon expert evidence from Professor Alderson, now the Barling Professor of Surgery at the University of Birmingham and latterly Professor of Gastrointestinal Surgery at the University of Bristol, together with reports from 7 other experts in the field. One of those comprised a review of the Claimant’s practice by the Oesophageal Patients’ Association. Additionally, the Claimant relied upon published literature. Those expert reports formed part of the response by the Claimant to two successive drafts of the report which were highly critical of him. Mr Saville obtained the views of a third expert assessor, Dr Peter Clein, formerly a consultant physician and medical oncologist.[6]The first draft report was sent to the Claimant in August 2005. The report of the first two assessors was attached (although, oddly, the authors were not identified). The Claimant was invited to comment and he did so through his solicitors. A revised draft report was sent to the Claimant in November 2005 with the report of the third assessor, also then anonymous, attached. This too met with a detailed response from the Claimant’s solicitors. In essence they argued that the Claimant’s management of Mr Ambrose was reasonable because it accorded with the practice of many other surgeons in his position, as evidenced by the comprehensive reports of those to whom I have referred. It was suggested that the correct test to apply when deciding on matters of clinical judgment is the Bolam test. Additionally, the detailed points of complaint (which centred upon whether Mr Saville had properly taken on board the evidence before him) were also set out.

The Disputed Findings

[7]Mr Saville made two general findings which directly concerned the Claimant. The first is found in paragraph 102 of the Report:
“Turning to Mr Ambrose’s management following his discharge, it is clear to me that his condition was neither properly monitored nor effectively followed up.”
The second is found in paragraph 116 of the report:
“[N]either Mr Ambrose nor his family were given adequate information about his condition between 15 October 2001 and his death on 20 January 2002.”

The First Finding

[8]The first finding only concerned post-discharge management. Mr Saville rejected a complaint directed to the treatment of Mr Ambrose whilst he was an in-patient on the grounds that his management during that period was ‘reasonable’ (paragraph 101 and 110 of the Report). The detail of his criticism of post-discharge management is found between paragraphs 102 and 110 of the Report. “102. Turning to Mr Ambrose’s management following his discharge, it is clear to me that his condition was neither properly monitored nor effectively followed up. The Assessors have said that there is no rationale in the records for the timing of the removal of Mr Ambrose’s feeding tube. In paragraphs xxxiii to xxxvii. of their report (Annex A), the first and second Assessors have summarised the contradictory accounts of the Consultant Surgeon and the Specialist Nurse of the removal of Mr Ambrose’s feeding tube and the Trust’s general policy on the removal of feeding tubes. They conclude that there was some confusion as to when feeding tubes would be removed and that there was no evidence of guidance or policy for staff on when it was appropriate to remove feeding tubes. In their opinion, such guidance or policy could have been written down and kept on the surgical ward, given to the dieticians and also retained by the Specialist Nurse; this would have cleared up the confusions that arose over the removal of Mr Ambrose’s feeding tube. The MPS’ solicitors have sent me letters from upper GI specialists on the standards for the timing of removal of feeding tubes and the general rules for management of feeding tubes that applied at the time Mr Ambrose was being treated (paragraph 21). However, the fist and second Assessors advise me that these rules apply when the patient is making normal post-operative progress, when, in Mr Ambrose’s case, the opposite was true. I accept that advice.103. In the light of the extent of Mr Ambrose’s weight loss by the time of his first outpatient appointment on 11 December, more should have been done to investigate the cause of that weight loss and to provide intensive nutritional support. While the prescribing of Dexamethasone in order to stimulate Mr Ambrose’s appetite was not in itself inappropriate, an earlier appointment should have been made to monitor effects correctly, two weeks after he commenced the drug in view of the rate of his weight loss, or as close as possible to that date in view of the Christmas holidays. Indeed the Gastrointestinal Professor (paragraph 21) is not clear why the short course of high dose steroids given to Mr Ambrose to stimulate his appetite decision was extended. In addition, more should have been done to ensure that prompt action was taken on the referral to the dietician. Since my interview with her, the Specialist Nurse has informed me that she and a gastro-dietician are in the process of developing a simple flow diagram to act as a prompt for dietetic referral, which is to be displayed in the outpatient clinics to ensure that correct referral takes place. I welcome this development.104. Given the statistics quoted by the Consultant Surgeon in his evidence, he should have been aware of the possibility of recurrent or metastatic disease as a cause of Mr Ambrose’s weight loss, and his evidence suggests that he was. He said at interview that the extent of the weight loss indicated progressive disease and that no action other than the prescribing of Dexamethasone was taken in light of these indications because ‘there was no further clinical decision that could have been taken’. He also said that only 1-2% of oesophagectomy patients choose palliative chemotherapy in such a situation, although it is clear from his evidence that this treatment was not offered as a matter of course and was generally received only by those patients who insisted upon it. In relation to Mr Ambrose, the Consultant Surgeon said that ‘palliative chemotherapy would just have made him feel sick’, and on that basis he seems to have denied Mr Ambrose the option of further treatment. Neither palliative chemotherapy nor other palliative care was offered or even discussed with him.105. I note that in their letter referred to in paragraph 21, the MPS’ solicitors say that the Consultant Surgeon should be judged by the Bolam test of ‘a reasonable body of medical opinion’. The Bolam test is one used by courts when considering actions. However, the purpose of the Ombudsman’s investigation into this complaint is not to establish whether the Trust and/or the Consultant Surgeon were negligent but whether Mr Ambrose and his family suffered injustice or hardship as a consequence of any failure in the service that they received from the Trust. The standard of proof that applies in such a case is lower than for negligence.106. There has been much debate about the conflicting opinions held by the Ombudsman’s Assessors on the one hand and the oncologists and surgeons who support the Consultant Surgeon’s approach on the other hand on the possible benefits of palliative chemotherapy in Mr Ambrose’s case, so much so that it would be easy to miss the wood for the trees. In their report (Annex A), the first and second Assessors agree with the overall view of these oncologists and surgeons that it would be unusual to give chemotherapy to someone seven weeks after surgery to treat recurrent cancer, particularly if the patient’s condition was very weak. However, as the first and second Assessors also say, the key issue is not so much that Mr Ambrose was or was not offered palliative chemotherapy, but rather how little effort was made to identify the cause of his serious weight loss and to provide adequate care for him, whatever the cause of his weight loss. Contrary to accepted practice, his rapid deterioration after his operation was not investigated at all. Potentially reversible causes for his deterioration were therefore not excluded, and the assumption that this was totally due to recurrent cancer was based on scanty evidence, or indeed no evidence at the time. In the opinion of the first and second Assessors, there was inadequate investigation of his post-operative weight loss, poor communication with him and the primary care team, and lack of supportive care for him. I accept their advice. In paragraph lxii of their report, the first and second Assessors have also explained why it is not appropriate for them to consider those questions raised by the Gastrointestinal Professor in the letter of 15 December 2005 from the MPS’ solicitors (paragraph 22 of the main Ombudsman report) that the third Assessor has not dealt with in his report.107. I do not underestimate the difficulty faced by clinicians when dealing with patients who are terminally ill. The Consultant Surgeon is convinced that his management of Mr Ambrose’s condition after his discharge from hospital was entirely in accordance with UK practice. However, the Assessors have advised me that palliative chemotherapy could have extended his survival by some months, and that other palliative care could have improved the quality of his life. Furthermore, the third Assessor considers that the Consultant Surgeon’s review of literature on the subject (paragraph 21) is irrelevant to this case, because the question of chemotherapy in Mr Ambrose’s cases related only to second line palliative chemotherapy. More importantly, the Assessors say that full knowledge of his prognosis would have allowed him to make an informed choice and given himself and his family an opportunity to come to terms with his impending death.108. The Consultant Surgeon also argues that his policy for managing weight loss takes into account the fact that all oesophagectomy patients lose weight for a period after surgery. However, the third Assessor in his report (Annex B) advises me that this argument takes no account either of the degree of the patient’s weight loss or the length of time that the weight loss goes on, and that it makes no sense in terms of a management plan. The third Assessor also explains why it is necessary to identify the cause of a patient’s weight loss and the steps that should be taken to do this.109. The Assessors have said that one of the likely factors in the Trust’s failure to monitor Mr Ambrose’s condition effectively after his discharge was the absence of multi disciplinary meetings at the time, and the fact that the Specialist Nurse appears to have been unavailable at both of Mr Ambrose’s outpatient appointments. It is also clear from the medical records that the medical oncology team at Wythenshawe Hospital passed Mr Ambrose’s care to the surgical team at Hope Hospital following his consultation on 3 December 2001 because he had difficulty travelling to Wythenshawe. His management was therefore left entirely to the surgical team. I welcome the fact that the Trust has, since the time of these events, introduced a partial multi-disciplinary team in upper G1 cancer, which meets weekly at Hope Hospital. However, like the Assessors, I am concerned that the oncolocy specialism is still not represented on this team, which contrary to what the Trust says, is not in line with the Manual of Cancer Services (paragraph 14). I expect the Trust to rectify this omission as a matter of urgency, since the inclusion of both a Clinical Oncologist and a Medical Oncologist on the team are essential in the light of the Assessors’ view that the absence of multi-disciplinary meetings was one of the likely factors in the failure to monitor Mr Ambrose’s condition effectively after his discharge.110. On the basis of the evidence I have seen, I accept the Assessors’ view that Mr Ambrose’s management as an inpatient was reasonable. However, I find that his management between the date of his discharge and his death fell below a reasonable standard, in that his deterioration and weight loss were not properly investigated and his condition was not effectively managed. I uphold the complaint on that basis. It is clear that the Trust has already made some improvements to its arrangements for the care of patients like Mr Ambrose. However, it is also clear that more could be done to address the shortcomings identified by this investigation, and I recommend that the Trust implements in full the recommendations included at paragraphs lxxi to lxxxi of the first and second Assessors’ report at Annex A.” It can be seen from paragraph 105 that Mr Saville directly confronted the question of the application of the Bolam test and held that the standard of proof for an adverse finding by the Ombudsman when considering questions of clinical judgement or practice is a ‘lower one’. The Second Finding[9]The discussion and criticism on the topic of communication is found in paragraphs 111 to 116 of the report. “111. Again, Mr Ambrose’s family has expressed concern over the adequacy of information provided to them, both during his time as an inpatient, and following his discharge. The Assessors’ view is that Mr Ambrose himself was properly informed about his diagnosis and proposed treatment on a number of occasions prior to his surgery on 15 October 2001, and I accept their advice. However, it seems that the potential outcomes of that treatment were not discussed with him. There is no record of such discussion in the clinical records, and the Consultant Surgeon said at interview that Mr Ambrose was ‘an elderly man for whom statistics would have been of no interest’. The MPS’ solicitors say that it is hard to understand how, if Mr Ambrose was properly informed about his diagnosis and proposed treatment on a number of occasions prior to his surgery, he could not also have been made aware of the potential outcome of his disease and its proposed treatment (paragraph 20). In their report at Annex A, the first and second Assessors comment that it is inappropriate to rely on all the information given pre-operatively to a patient undergoing such an operation being sufficiently comprehensive to deal with all eventualities post-operatively and that the clinicians should have specifically addressed the rapid and marked deterioration in Mr Ambrose’s condition. In any case, as it is apparently not specifically recorded in the contemporaneous medical notes that the Consultant Surgeon or any other member of his team advised Mr Ambrose of the outcome of his disease and its proposed treatment, it cannot necessarily be inferred that Mr Ambrose was given such advice. Communication in the circumstances of a terminal illness has to be a continuing process. It is not sufficient for clinicians to tell patients that there is a risk of death; patients have to be informed of their progress as events unfold.112. The MPS’ solicitors also argue (paragraph 20) that, because Miss Ambrose stated that her father did not speak much about his condition and that he had said that he was in the hands of God and was not afraid of dying, this demonstrates that Mr Ambrose and his wife were aware of the potential outcome of his illness. In answer to this, I would say that it does not necessarily follow from the fact that Mr Ambrose said that he was not afraid of dying that the Consultant Surgeon and/or his colleagues had in fact given him full advice about the potential outcome. Mr Ambrose clearly knew that he had had a serious operation and that the prognosis was probably not good, but that is not the same as being fully briefed on the potential outcome.113. There is no record of Mr Ambrose being made aware of the fact that the chances of the disease recurring were, in the Consultant Surgeon’s view, more than 50%. In addition, other than a general note of two discussions with the Macmillan Nurse (who would not have been aware of his prognosis), there is no evidence in the medical records of any discussion with Mr Ambrose or family members about his post-surgical progress or the options open to him. Indeed, in his report (paragraph 23), the Gastrointestinal Professor is critical in general of the written records in this case on the grounds that they were inadequate in terms of explaining what Mr Ambrose understood and consequently what his family might have understood from conversations with him. In particular, he criticised the clinical records for being deficient from the post-operative period onwards, particularly in terms of decisions made and information transmitted to Mr Ambrose and/or his family. In his opinion, poor written and verbal communication with Mr Ambrose and his family caused significant distress, for which the Trust and the clinical team should accept responsibility through system and individual failures.114. The Consultant Surgeon has suggested that Mr Ambrose may have chosen not to share information about his condition with his family, and has hinted at the existence of family tensions. I can find absolutely no evidence to suggest that this is likely. Indeed, the evidence in the medical records clearly indicated that Mr Ambrose told Trust staff that he wanted details of his condition to be shared with his family, and that no family member was to be excluded from that process. The Consultant Surgeon seemed to be unaware of this. While the postponement of Mr Ambrose’s surgery meant that Mr Horrocks and Miss Ambrose were away at the time of the operation, the family describe a number of attempts to contact the Consultant Surgeon and the Specialist Nurse. However, neither the Consultant Surgeon nor the Specialist Nurse says that they were made aware of those attempts.115. At Mr Ambrose’s outpatient attendance on 11 December 2001, concerns should have been raised about his deterioration. The evidence indicates that the Consultant Surgeon was aware of Mr Ambrose’s condition from discussion with the SHO, and that the management plan was approved by him; however, there is no evidence that he saw Mr Ambrose or discussed his condition with him. The SHO, a junior member of the team, has said that she cannot remember what she said to Mr Ambrose, or whether anyone was with him. She believed that she should have told him she was worried about the weight loss, but could not remember discussing the possibility of ongoing disease with him. It was only when Mr Ambrose returned to the clinic on 15 January 2002, just five days before his death, that he and his family were told that urgent investigations were required to establish the reason for his severe deterioration. As the first and second Assessors say in their report, it was the Consultant Surgeon’s responsibility, through his junior staff, to provide patients, community nurses, their GPs and other people caring for them with adequate information about patients’ conditions, and his responsibility for this is not absolved by the large size of his clinics116. I am pleased to hear from the MPS’ solicitors that as a result of Mr Ambrose’s case the Consultant Surgeon now takes a more proactive stance to family involvement (paragraph 20). I am also pleased that he will discuss the report with his present manager and reflect on how to improve on his practice in the areas identified (paragraph 21). Nevertheless, I find that neither Mr Ambrose nor his family were given adequate information about his condition between 15 October 2001 and his death on 20 January 2002. I uphold the complaint. I recommend that, in addition to the recommendations set out in the first and second Assessors’ report, the Trust takes steps to ensure that all of those involved in patient care are aware of patients’ wishes regarding the sharing of information with carers and families, and that all such discussions are properly documented. I also recommend that the Trust considers this report in its clinical governance discussions.”[10]Having dealt with the substance of the complaint, Mr Saville went on to consider the general conduct of the Claimant and set out his conclusions in three further paragraphs:
“117. Finally, with regard to both complaints, I must record serious concerns about the Consultant Surgeon in respect of both his clinical practice and his attitude to this complaint. It is clear from his own evidence that the Consultant Surgeon made a number of assumptions about Mr Ambrose and his family which guided his actions and led to some of the shortcomings identified in the course of this investigation. He has said that Mr Ambrose would not have been interested in statistics about prognosis, and on that basis did not share relevant information with him. He has also said that palliative chemotherapy would have made Mr Ambrose feel sick, and therefore he did not offer it to him – and, it seems, to other patients in his care with a similar prognosis. There is no evidence to suggest that Mr Ambrose, post surgery, was made aware of the potential seriousness of his condition, or of the options open to him in terms of further investigation and palliation. As a result, he was in my view denied information which would have allowed him to make informed choices about the time he had left, and to discuss those choices with his family had he so wished. Indeed it would appear that the reason that Mr Horrocks and Miss Ambrose brought Mr Ambrose to North Manchester Hospital’s A & E Department on 20 January 2002 was that he and his family were not aware that he was close to death and that they would not have taken this action if the family had had adequate information about Mr Ambrose’s condition. As the Assessors say, the family did not have adequate information primarily because Mr Ambrose himself did not have sufficient information. 118. The Consultant Surgeon also made unwarranted assumptions about Mr Ambrose’s family, as expressed in his evidence, and suggested that Mr Ambrose had not wished them to know the details of his condition, when in fact there was clear evidence in his medical records to the contrary. Furthermore, as I have said in paragraph 107, full knowledge of his prognosis would have allowed him to make an informed choice and given himself and his family an opportunity to come to terms with his impending death. 119. I criticise the Consultant Surgeon for these shortcomings, and I am concerned that other patients of his in a similar position to Mr Ambrose should not be similarly affected in future. I had been minded to recommend that the Trust’s Chief Executive should share this report with the Consultant Surgeon’s current employer in order that his present manager might reflect with the Consultant Surgeon on ways in which he might improve his practice. This would have meant that the Trust’s Chief Executive would send the report to the Chief Executive of his current employer. However, the Consultant Surgeon has said that he will discuss the report with his present manager and reflect on how to improve on his practice in the areas identified. I therefore recommend that the Consultant Surgeon should himself give a copy of this report to his present Trust’s Clinical Director, and also his manager if the Clinical Director is not his direct line manager, so that the Clinical Director (and, if relevant, his manager as well) may reflect with him on ways in which he might improve his practice in future. Furthermore the Consultant Surgeon and/or his Clinical Director and/or his manager should confirm to me in writing that this has been done. I hold this to be particularly important in light of the fact that the Consultant Surgeon’s current role gives him considerable scope for influencing the practice of other clinicians.”

The Statutory Scheme

[11]The Ombudsman operates under the provisions of the Health Service Commissioners Act 1993 [“the Act”] as amended. Section 1 of the Act provides that “there shall continue to be a Health Service Commissioner for England”. Indeed the post goes back to 1974. Section 3(1) of the Act (as amended) is concerned with the general remit of the Ombudsman. It provides:
“General Remit of Commissioner (1) On a complaint duly made to the 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. (1ZA) Any failure or maladministration mentioned in subsection (1) may arise from action of-- (a) the health service body, (b) a person employed by that body, (c) a person acting on behalf of that body, or (d) a person to whom that body has delegated any functions.” (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. (a) the health service body, (b) a person employed by that body, (c) a person acting on behalf of that body, or (d) a person to whom that body has delegated any functions.”
[12]As originally enacted, Section 5 of the Act expressly excluded from the Ombudsman’s jurisdiction any investigation of matters exclusively of clinical judgment: “action taken in connection with(a) the diagnosis of illness, or(b) the care or treatment of a patient, which, in the opinion of the Commissioner, was taken solely in consequence of the exercise of clinical judgment, whether formed by the person taking the action or any other person”.[13]That provision was repealed as from 1st April 1996. Sections 3(4) to (6) of the Act contain various provisions which limit the jurisdiction of the Ombudsman but by virtue of section 3(7), introduced by amendment in 1996, those limitations do not apply to the merits of a decision taken in exercise of a clinical judgment.[14]The Act deals with the relationship between an investigation by the Ombudsman and other legal remedies available to a complainant in these terms in section 4:
“Availability of other remedy (1) The Commissioner shall not conduct an investigation in respect of action in relation to which the person aggrieved has or had- (a) a right of appeal, reference or review to or before a tribunal constituted by or under any enactment or by virtue of Her Majesty's prerogative, or (b) a remedy by way of proceedings in any court of law, unless the Commissioner is satisfied that in the particular circumstances it is not reasonable to expect that person to resort or have resorted to it.” (a) a right of appeal, reference or review to or before a tribunal constituted by or under any enactment or by virtue of Her Majesty's prerogative, or (b) a remedy by way of proceedings in any court of law, unless the Commissioner is satisfied that in the particular circumstances it is not reasonable to expect that person to resort or have resorted to it.”
[15]It can thus be seen that the amendments made in 1996 introduced a very significant change in the function of the Ombudsman with far reaching potential consequences for clinicians. Prior to 1996 the Ombudsman was limited to investigating matters such as the level of information given to patients, failings in internal complaints procedures, the quality of care on the ward, cleanliness, waiting lists, cancellations, record keeping, co-ordinated arrangements for discharge and the like. That continues to occupy much of the case load of the Ombudsman but the consideration of criticisms that go directly to the clinical judgment of doctors and other health professionals now forms an important part of the Ombudsman’s work.

The Ombudsman’s Approach

[16]It is clear that the Ombudsman takes a relaxed view about the application of section 4 of the Act. Most complaints about clinical judgment would give rise to a theoretical claim for damages in negligence since almost all would have resulted in some loss, otherwise a complaint would be unlikely. Nonetheless, the Ombudsman recognises that for many people compensation is not an issue at all. The reality is that it can be very difficult indeed to bring a claim for clinical negligence because of the costs involved and the difficulty in obtaining funding. Unless the likely damages are large, or the claim apparently clear cut, such claims are relatively uncommon. This is one of those cases where Mr Ambrose’s family wanted answers rather than money.[17]The expansion of the jurisdiction of the Ombudsman in 1996 was accompanied by statements by the then Ombudsman of how he intended to apply the statutory test found in Section 3(1) to questions arising from clinical judgment. He published a paper in December 1995 entitled ‘Responsibilities of the Health Service Commissioner’ to herald the new responsibilities envisaged by the Bill then before Parliament. The material parts of that paper are in paragraphs 42 to 49 in the following terms:
“42. Where the Statement of Complaint includes issues related to the exercise of clinical judgment the Ombudsman will expect his professional advisers to draw on their knowledge, experience and expertise. He will be asking them, as a general rule, to advise him on whether the actions complained of were based on a reasonable and responsible exercise of clinical judgment of a standard which the patient could be reasonably entitled to expect in the circumstances in question. Advisers will be able to take appropriate account of their assessment of the skills, knowledge and experience of the professional concerned and all the other particular circumstances of the case which they considered had a bearing on the decisions and actions in question. … 44. Advisers would not be invited to say whether they personally would have decided or acted similarly or to give advice on whether the action taken was the best possible. The Ombudsman will however expect his advisers, in deciding what was reasonable and responsible in the circumstances, to have due regard to all the relevant professional guidance on standards and good practice which, in their view, a professional working in the capacity in question could be expected to take into account. Where appropriate he would expect his advisers also to consider whether, in the matters complained of, acceptable standards of delegation, accountability, supervision and support had been demonstrated. 45. In considering whether to uphold a complaint about a clinical decision or about an alleged failure in service the Ombudsman will take fully into account all the advice he receives and the evidence of his investigation. Without seeking in any way to encourage or promote a ‘blame culture’ it is the Ombudsman’s responsibility to criticise where in his view the patient does not receive the service he is reasonably entitled to expect. It is not his responsibility to set standards. However it will be open to his advisers, where they see fit, to draw to the attention of the Ombudsman any aspect of the services provided where they consider improvements could with benefit be made or action taken to prevent any recurrence of a shortcoming. The Ombudsman may then reflect such views in his report as matters for consideration by the responsible provider, whether or not he has decided to uphold the complaint. 46. The Ombudsman will also expect his advisers, where it is an issue in the context of the matters complained about, to express a view about whether the hardship or injustice complained about was the result of actions taken in the exercise of clinical judgment. He recognises that where this is an issue advisers would be invited to give their own view as specialists in the relevant discipline. 47. The Ombudsman will expect his advisers to reach their conclusions on the balance of probabilities. Advisers will also be able to state that in their view it would be unsafe to reach any conclusions. 49. The Ombudsman recognises that it is a natural and proper concern of patients and those who may complain on their behalf to know whether anyone was at fault. His investigations will address that issue. However he also fully recognises that clinical decisions responsibly and properly considered can and will occasionally lead to unintended and harmful consequences for patients. This can happen even when in terms of the intended outcome the treatment was successful. In his investigations and conclusions he will be seeking to be fair to all concerned. He will expect his advisers to be equally committed to that objective.”
Similar observations were made in a ‘Guide to the Work of the Health Service Ombudsman’ published in April 1996.[18]Mr Saville’s report does not state in terms what test he applied to his judgments of the Claimant’s clinical judgment, save the references in paragraphs 101 (where he judges the in-patient treatment as ‘reasonable’) and 110 (where he judges that the post discharge care fell below ‘a reasonable standard’) Nonetheless, in a response to a letter before claim, the Ombudsman’s solicitors confirmed that the test applied was whether the service provided by the trust “fell below a standard which the patient could reasonably have expected in the circumstances.”

The Bolam Test

[19]The concept of negligence is rooted in a requirement that in circumstances where a duty of care is owed by one person to another, the one must act with reasonable care towards the other. That is true whether the person owing a duty of care is, for example, driving a car, organising a village fete, or discharging a professional skill. Courts have no difficulty in assessing the standard of care which a driver must achieve, or a fete organiser in perhaps avoiding tripping hazards. But the position with professionals exercising specialist skill may well be different. It has been necessary for the courts to consider what amounts to unreasonable conduct in the context of professional skill and judgement where it is recognised that two equally skilled individuals might have very different opinions about the appropriate way of dealing with an issue in hand. How is the court to approach an issue where there is evidence, which it accepts, that whilst what the professional did was not in accord with the practice of one group of his peers, it entirely accorded with the practice of another group whom it recognises as acting responsibly? The answer is that it is generally not unreasonable for a professional to act in accordance with a practice accepted as proper by a responsible body of his peers. That is the test articulated by McNair J in Bolam v Friern Hospital Management Committee [1957] 1WLR 582 at 586 when he directed the jury in that medical negligence case.[20]A similar formulation was proposed by Lord Scarman in Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 at 881F where he suggested that a doctor discharges his duty to act with reasonable skill and care “if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes a duty of care: but the standard of care is a matter of medical judgment.”[21]In a claim for damages it is, of course, for the court to decide whether the body of opinion is responsible or the conduct approbated represents a reasonably competent standard. It does not delegate that task to experts who give evidence before it. As Lord Browne-Wilkinson explained in Bolitho v City and Hackney health Authority [1998] AC 232 at 241-242 “The use of these adjectives – responsible, reasonable and respectable – all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such an opinion has a logical base.” So if a court were to conclude that a practice, whilst widely adopted by a section of the profession in question, was unduly sloppy, the court would not regard itself as being bound by that practice.

Competing Submissions

[22]Mr Philip Havers QC, who appeared for the Claimant, developed two submissions on the application of the Bolam Test. First, he submitted that the language of section 3(1) of the Act, when considered in the context of clinical judgement, necessarily contemplated that a finding of a failure in a service causing injustice or hardship could only be made if the clinician had acted unreasonably in a Bolam sense. He prayed in aid the views of the then Ombudsman concerning the way in which he intended to apply his new powers as being for practical purposes indistinguishable from the Bolam approach. Mr Havers submitted:(i) that the Ombudsman’s approach as reflected in Mr Saville’s report leads to uncertainty, because there is in play a more exacting but undefined standard of care;(ii) that the Ombudsman’s approach is unworkable because clinicians are being required to operate according to two parallel but different standards; and(iii) that the Ombudsman’s approach is unfair because a clinician’s conduct is vulnerable to being stigmatised as ‘unreasonable’ in circumstances where it would not be considered to have fallen below the standard of reasonable care and skill for the purposes of the law of negligence.[23]Secondly, even if the language of the statute did not dictate that outcome when read alone, and the Ombudsman is free to apply a different test, she and her predecessor have repeatedly articulated the test which they apply in terms which lead inexorably to the conclusion that it is the Bolam test. Since they have linked this aspect of their jurisdiction to the standard which a patient can reasonably expect, he asks the rhetorical question: How can a patient reasonably expect a clinician to discharge his duty other than by reference to the standard that the law requires?[24]Mr James Maurici, who appeared for the Ombudsman, submitted that the terms of the Act nowhere echoed the language of ‘negligence’ and that it was clear that included within the statutory purpose was an intention that patients could obtain relief from the Ombudsman which is unobtainable in the courts. It was thus wrong in principle to seek to read the language of section 3(1) as a surrogate for negligence in the context of clinical judgment. He went further and submitted that the Ombudsman might be in legal error if she were to adopt the Bolam test in this context. He submitted that the authorities dealing with the definition of ‘maladministration’ and ‘injustice’ arising out of similar legislation governing the activities of the Parliamentary Ombudsman and Local Ombudsmen made it clear that both terms are undefined and not tied to any concept of unlawfulness. Thus, it is for the Ombudsman herself to establish the circumstances in which either is established: See eg R v Local Commissioner ex parte Bradford Council [1979] 1 QB 287 at 311C per Lord Denning; R v Parliamentary Commissioner for Administration ex parte Morris and Balchin [1997] JPL 917 at 925 and 926 per Sedley J; R v Local Commissioner for Administration in North and North East England ex parte Liverpool City Council [2001] 1 All ER at [17] per Henry LJ, [46]-[47] per Chadwick LJ. Therefore, the same approach should be adopted to the concept of a ‘failure in a service’.[25]Mr Maurici submitted that fault is not an essential component of a failure of service. He relied upon the formulation in the response to the letter before claim (echoing as it did the publications of the then Ombudsman at the time that the legislation was amended to enlarge the powers). He submitted that a patient was entitled to expect something better than the standard dictated by the Bolam approach. It was therefore possible for the Ombudsman to conclude that a clinical judgment was unreasonable (because a patient could reasonably have expected better) even though the judgment was reasonable when judged by the standards of Bolam, Sidaway and Bolitho.

Discussion

[26]The language of section 3(1) of the Act predated the expansion of the role of the Ombudsman to encompass complaints relating to matters exclusively of clinical judgment. It brings together 5 related concepts:(a) Injustice;(b) Hardship;(c) Failure in a service;(d) Failure to provide a service;(e) Maladministration.[27]None of these is defined. The purpose of the Health Service Commissioner (and the Commissioners who have jurisdiction over complaints relating other aspects of public life) 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 the various Acts governing the jurisdiction of the Ombudsmen. The authorities show that the concepts of ‘maladministration’ and ‘injustice’, for the purposes of this area of legislation, do not stick like glue to notions of illegality and loss in the common law. It seems to me, similarly, that the concept of a ‘failure in a service’ does not necessarily import culpability in the sense required in an action for damages founded in negligence. There is any number of areas in which the public deals as consumer where a ‘failure in the service’ provided, is quite unconnected with culpability. Sometimes redress of some sort is available (for example, in air travel) and sometimes not. 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.[28]It is not unknown for a court to have to make findings of ‘failures’ which are not necessarily culpable. In R (Middleton) v West Somerset Coroner [2004] 2 AC 182 the House of Lords was concerned with the question whether the statutory prohibition against coroners or their juries passing comment on contentious issues was compatible with Article 2 of the European Convention of Human Rights. Middleton was a case about a prisoner who took his own life in prison. Much of the evidence at the inquest was directed towards whether the risk of suicide was appreciated or should have been appreciated. Coronial legislation prevents a coroner’s court from making findings of civil liability or appearing to do so. Lord Bingham, who gave the considered opinion of the Committee, explained that Article 2 did indeed require that the fact finding tribunal could comment on central disputed factual issues. Nonetheless, he considered that the provisions prohibiting the use of language that appeared to determine civil liability should be respected. He suggested that the following formulation would respect those provisions:
“The deceased took his own life, in part because the risk of his doing so was not recognised and the appropriate precautions were not taken to prevent him doing so.”
This is an example of a failing which is expressed in terms unconnected with the question whether the failing was culpable. It is striking that the area in which this formulation was advanced by the House of Lords was one where the Bolam test would be applied to the medical staff if their conduct were investigated in a civil claim.[29]In my judgment, the Ombudsman would be entitled to approach the question of failure in service, even in the context of clinical judgment, from a point of view that is different from the approach of the courts in negligence actions. It would, for example, be open to the Ombudsman to explain that whilst she recognised that a finding of negligence could not be made, she would be disposed to make a finding of a failure in service if the clinical care fell below best practice within the NHS. I therefore do not accept Mr Havers’ primary submission that the language of section 3(1) itself dictates that the Bolam test should be applied by the Ombudsman to questions of clinical negligence.[30]That, however, is not the end of this aspect of the case because of the secondary submission that the test publicly articulated by the Ombudsman is in fact the Bolam test in all but name. Having articulated that test, the Ombudsman is bound to apply it, submits Mr Havers. Given his statement in paragraph 105 of his report, Mr Saville has not applied the test which the Ombudsman has articulated. In paragraphs 101 and 110 of the report Mr Saville shows that he is applying a test of ‘reasonableness’ but in paragraph 105 explains that it is lower than the Bolam test. The use of the word ‘reasonable’ is clearly shorthand for the more detailed formulation found in the 1995 paper and the reply to the letter before claim.[31]Paragraph 42 of that paper explained that the professional advisers assisting the Ombudsman when dealing with a complaint about clinical judgment would be asked whether the actions of the clinician ‘were based on a reasonable and responsible exercise of clinical judgment of a standard which the patient could be reasonably entitled to expect in the circumstances in question.’ In paragraph 45 he explained that such advisers would not be asked to say whether they would have acted in the same way or differently. Similarly, the question was not whether the action taken was the best possible. Paragraph 45 went on to draw attention to professional guidance available on standards and good practice together with ‘acceptable’ standards of delegation, supervision and the like. Paragraph 45 echoed the concept that criticism was due only where the patient failed to receive the service he could reasonably expect. He went on (in terms quoted in paragraph [17] above) to explain that he might suggest improvements even where there was no finding that a material failure had occurred.[32]Thus, it is clear that the Ombudsman envisaged making recommendations to improve practice even when no failure of service has been demonstrated giving rise to injustice or hardship. In paragraph 49 he explained that he would investigate questions of fault, whilst recognising that ‘clinical decisions responsibly and properly considered can and will occasionally lead to unintended and harmful consequences for patients.’ The point being made was that he might encounter clinical decisions that have in fact caused harm but which were not to be criticised.[33]In anticipation of the passage of the amendments to the Act the Ombudsman was thus concerned to ensure that all who might be affected by his decisions were aware of how he intended to apply his new jurisdiction. He was, as it seems to me, seeking to be sensitive to the professional judgments of clinicians. In using the formulation ‘a reasonable and responsible exercise of clinical judgment’ he was echoing the language of McNair J in Bolam and Lord Scarman in Sidaway. He drew the distinction between that concept and an expression of personal opinion by his advisers based on what they would have done in the same circumstances and explained that they should concern themselves with ‘acceptable standards’.[34]All of these formulations indicate to my mind that the Ombudsman was indeed saying that his test for stigmatising clinical judgment as unreasonable was the same as the test applied by the courts to the same question when it arises in clinical negligence cases. The use of the phrase ‘which the patient could reasonably be entitled to expect’ reinforces that conclusion. It appears in the same sentence in paragraph 42 as the general formulation and does not set up a dichotomy, but is rather another way of saying the same thing. A patient is reasonably entitled to expect the actions of the clinicians to be based on a reasonable and responsible exercise of clinical judgment.[35]During the course of the argument I asked Mr Maurici how, in the Ombudsman’s view, the formulation in the documents, distilled in pithy form in the letter to which I have referred, differed from that applied in clinical negligence cases. His answer was that the patient could reasonably expect a standard better than that accepted as reasonable by a responsible body of medical opinion. In my judgment, for the reasons that I have articulated, the test which the Ombudsman says that she applies cannot bear that interpretation. Whilst, as I have found, the statutory language does not dictate this outcome, the Ombudsman’s own documents show that when considering whether to stigmatise a clinical judgment as ‘unreasonable’ she and her predecessor have stated that they will apply a test which is indistinguishable from the Bolam test.[36]It follows that Mr Saville misdirected himself in applying a different standard to the question whether the Claimant had acted unreasonably in the management of Mr Ambrose after his discharge (paragraph 110 of the Report). This criticism was undoubtedly directed towards clinical judgment, although much else in the paragraphs that precede it is concerned with more general concerns and criticisms.[37]The criticism with regard to the second finding (inadequate information provided regarding the prognosis) is not so obviously a direct attack on the Claimant’s clinical judgment. The Claimant’s position was that there was nothing to be done for Mr Ambrose and that he had been given proper and adequate information in advance of his operation. The complaint made by the family was that insufficient information was imparted to Mr Ambrose after the surgery and following his discharge to enable him to make proper arrangements with his family in anticipation of his death. That criticism flows from the conclusion reached by Mr Saville that more should have been done when Mr Ambrose attended his outpatient appointment on 11 December 2001 (compare paragraphs 103 and 115). There is no express finding in the part of the report dealing with the second finding that the Claimant’s approach fell below a reasonable standard, but the language of of the report coupled with the firm criticism that follows in paragraphs 117 to 119 suggests that Mr Saville certainly considered it unreasonable by reference to the lower standard he had identified in paragraph 105.[38]It is striking that the joint report from 2 assessors (Annex A to the Report) and the report from the third assessor (Annex B) do not follow the pattern foreshadowed in the 1995 paper. The joint report is highly critical on the care afforded to Mr Ambrose by all the professionals involved and concludes that there was a collective failure to act on his substantial weight loss, there was confusion over the removal of his tube and a lack of provision of information. Some of the criticisms are systemic. Others are personal. In connection with some issues there is a discussion of the expert evidence placed before the Ombudsman by the Claimant and in a number of instances it is dealt with in a way which suggests that the joint writers consider it to be wrong or not in point. There is a positive averment by these assessors that the pre-discharge care of Mr Ambrose was ‘reasonable’ (see paragraph xxxi) but it is much less clear what standard these assessors were applying to the other clinical matters they were addressing. For example, in paragraph (xxxvi), concerning the removal of the tube, they suggest that:
“it is not unreasonable to have expected a more individual standard of care for Mr Ambrose and closer monitoring of his nutritional status to determine, in his best interest, when his feeding tube should have been removed. In our view it would be inappropriate to measure this in such a broad way with reference to standards that apply across the country. We do not agree with the argument of [the Claimant’s] solicitors …”
[39]Important conclusions are reached in paragraphs (lvii), (lix) and (lxx) as follows:
“lvii. In his report (paragraph 23 of the main Ombudsman’s report), the Gastrointestinal Professor concludes that the clinical decision making was entirely reasonable on both occasions that Mr Ambrose attended the outpatient clinic. Nevertheless, even if one accepts the inevitable outcome of Mr Ambrose’s condition, it is clear to us that the inexperience of the SHO at the first outpatient appointment and poor communication (both verbal and written) led to a situation developing that denied Mr Ambrose a dignified and comfortable end to his life. The absence of an effective and appropriate input from agencies to which Mr Ambrose was entitled cannot be viewed as satisfactory. lix. With regard to the first head of complaint, we believe that the standard of care delivered to Mr Ambrose between 15 October and 7 November 2001 in terms of investigation and management was entirely appropriate. From the time of his discharge from hospital until the time of his death, we do not believe that his deteriorating condition and weight loss were adequately investigated or managed. lxx. In his report (paragraph 23 of the main Ombudsman’s report), the Gastrointestinal Professor says that he did not believe that there was any strong evidence indicating that any alternative course of action might have significantly prolonged Mr Ambrose’s survival and/or general well being. However, this argument seems to flow from the assumption that Mr Ambrose was dying of recurrent cancer and there was nothing further that could usefully be done for him. In our opinion, the clinicians could have searched rather more thoroughly for an explanation for his rapid deterioration, they could have provided adequate psychological and emotional support for him and carers and they could have discussed the possibilities of recurrent cancer with him and his carers”
[40]These citations demonstrate that the exercise outlined in the 1995 paper was not fully adhered to by these assessors. The third assessor, Dr Clein sets out the questions he was asked to consider in paragraph (i) of his report in terms which are very different from the approach of the 1995 paper:
“After receiving comments from the MPS’ solicitors (paragraphs 20, 21, 22 and 23 of the main Ombudsman report), the investigating officer asked me for further advice on (a) whether the clinicians who were treating Mr Ambrose adequately monitored his weight loss after his operation; (b) whether they should have investigated the cause of his weight loss; and (c) whether they should have offered him palliative chemotherapy or other palliative care.”
[41]There is no reference to judging clinical complaints by reference to whether they ‘were based on a reasonable and responsible exercise of clinical judgment of a standard which the patient could be reasonably entitled to expect in the circumstances in question’, or anything similar. Whilst he advanced cogent criticism of some of the reports submitted on behalf of the Claimant, his own report was essentially concerned to rebut arguments advanced by or on behalf of the Claimant.[42]It is clear from the Report and the attached assessors’ contributions that the complaints and findings were concerned with conduct much broader than the Claimant’s clinical judgement. The passages set out earlier in this judgment demonstrate that. The contents of the report were accepted by the Trust as were the recommendations that affected it. The Claimant accepted the recommendation touching him in paragraph 119. None of the other professionals who came within the scope of the Report’s criticisms have sought to challenge the conclusions. Neither counsel addressed me in detail on the appropriate form of relief should I conclude that Mr Saville misdirected himself. It would not, in my view, be appropriate to excise passages from the report or to quash particular parts of it. Neither would it be appropriate in this case to require passages to be rewritten. I will invite further submissions of questions of relief.

The Individual Complaints

[43]Before touching on the detail of the individual complaints it is necessary to consider in general terms the proper approach to adequacy of reasoning in reports such as this. This is a long report of about 40 pages of single spaced typescript with 121 paragraphs. The assessors’ reports comprise a further 23 such pages. The Report was issued following a detailed exchange of correspondence and representations on two earlier drafts. Mr Havers emphasised that the detailed complaints he advanced on behalf of the Claimant were not a challenge on the merits nor an invitation to the court to substitute its views for that on the Ombudsman. That is how they were characterised by Mr Maurici. Mr Havers focus was on the firm criticism found in paragraphs 117-119 of the report and in particular on paragraph 117, the content of which he submits does not stand up to analysis. Additionally, there are specific complaints about paragraphs 103 and 106. He suggested that the analogy with a planning decision prayed in aid by the Ombudsman as determining the nature of the reasoning required was misplaced. That is because, in particular, a report from the Ombudsman may be highly critical of individuals whose reputations as professionals might thereby be significantly damaged. He submitted that before trenchant criticism is made of that sort, considerably more by way of reasoning is required than would be judged adequate in the planning context. If evidence or an explanation is rejected, the underlying reasoning must be set out.[44]Mr Maurici made 8 general observations on the proper approach to detailed criticisms of the sort advanced by Mr Havers.(i) Fact finding is a matter for the Ombudsman or her delegate.(ii) The report must be read fairly and as a whole. The court should resist an invitation to over-analyse isolated parts of the report.(iii) The standard of reasoning required in an Ombudsman’s report is by analogy similar to that required of planning inspectors, as explained in cases such as South Bucks DC v Porter (No 2) [2004] 1 WLR 1953, per Lord Brown of Eaton-under-Heywood at [24] – [36] particularly by reference to Bolton Metropolitan District Council v Secretary of State for the Environment (1993) 71 P & CR 309. At paragraph [36] Lord Brown summarised the law in this way: “36 The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision. ”(iv) The context of the report included its detailed evolution, in which the Claimant was involved (to which I have referred).(v) The report cross references to the views of the assessors and has clearly taken account of the evidence of Professor Alderson, as did they.(vi) In various places within the Report the views of the assessors are adopted and made the views of the Ombudsman.(vii) The detailed challenge is limited in nature and it should not be overlooked that much of the report is not the subject of challenge.(viii) The Trust accepted all finding and recommendations including those which concerned the Claimant who was their employee.

Discussion

[45]The Act contains provisions which deal with procedure in connection with an investigation (sections 11-13). Those provisions include powers of compulsion regarding evidence. It creates offences of obstruction and contempt. Section 14 is concerned with ‘Reports of the Commissioner’. Its effect is that the Ombudsman must produce a ‘report of the results of the investigation’ in all cases where she agrees to investigate or ‘a statement of reasons’ to explain any decision not to investigate.[46]A report of the results of an investigation must be sent to a range of individuals or bodies identified in the various subsections of section 14, depending on the nature of the investigation. A report of the results of an investigation into a complaint made under section 3(1) goes to the person who made the complaint, any Member of Parliament who has assisted, the relevant health service body, anyone (like the Claimant) who is said to have taken or authorised the function complained of and to the Secretary of State.[47]The Act does not dictate the form of the Ombudsman’s report, nor the details of the consideration and discussion of the issues that is necessary. There are, of course, differences between a planning decision and an Ombudsman’s report. One is that it will rarely be necessary for a planning inspector to express an opinion which adversely affects anyone’s reputation. Nonetheless, in my judgment the general approach to reasons in the planning context (which have been read over into other areas of administrative decision making) is appropriate in cases involving the Ombudsman. Yet it is important to bear in mind the approach is a flexible one. In each case a court of review will be looking to determine whether the reasons were adequate, whether the conclusions on the principal contentious issues have been stated, and whether the principal factual disputes have been resolved with some explanation. Whether reasons are adequate will inevitably depend upon the nature of the issue under consideration. The more serious the allegation and impact of any adverse finding the more explanation will be required of the conclusions. A process which resulted in almost bare conclusions without significant reasoning would be unfair to those criticised.[48]In this area there is likely to be disagreement about what the principal controversial areas were and about what evidence was critical for resolving any disputes. It is natural that anyone subject to criticism would want every point taken on his behalf to be dealt with expressly, and all evidence examined in detail and every dispute resolved. That is a phenomenon familiar to all those who have dealt with disappointed litigants. Courts are not expected to adjudicate on that basis and the Ombudsman, although invested with some powers akin to those given to courts, does not have to either. I accept that the report must be read as a whole in a fair way and that very fine analysis of small parts of it is likely to defeat that aim. It is right that the reasoning in the report must be read in the knowledge that those to whom it is sent will be familiar with its background and the way in which the issues developed and were investigated. Although it is unlikely that the Secretary of State will be so informed, anyone who might wish to contest the report’s conclusions will be.[49]The context of the report includes the earlier drafts and the detailed submissions made on behalf of the Claimant. It is plain that Mr Saville accepted the views of the assessors and their reports were attached. He made express reference to some of what they said. He referred to the expert material provided by the Claimant and had clearly taken it into account. All of this is, in my judgment, important background when considering the discrete challenges.[50]With these general observations in mind, I accept Mr Maurici’s submission that none of the individual criticisms advanced by Mr Havers gives rise to any additional public law failing on the part of Mr Saville. Accepting, as I have, that he applied the wrong standard of the proof there is adequate explanation for the factual conclusions he reached in the body of the Report when read in the light of the assessor’s report, the underlying evidence and extensive exchanges with the Claimant’s solicitors. It is important to note that much of criticism springs from his failure to deal expressly with the ‘responsible body of medical opinion’ point raised by the Claimant through the evidence of Professor Alderson and others. That is correct as far as it goes, but because Mr Saville did not consider that he needed to resolve that question (he was applying a lower standard of proof), it strikes at the same underlying issue that I have already resolved in the Claimant’s favour. The only additional legitimate criticism is that Mr Saville did not explain what that lower standard was. The alleged factual and analytical errors, although explored in great detail in both the Statement of Facts and skeleton argument, fall within one of four categories: i) Mr Saville failed to take into account the views of the distinguished independent expert instructed on behalf of the Claimant, Professor Alderson; ii) alternatively, he rejected Professor Alderson’s views a) without any other explanations or reasons for doing so and; b) without any proper basis for doing so. iii) he misunderstood the evidence; iv) he arrived at conclusions which were manifestly unsound.[51]In general response to these suggestions, the Ombudsman says that it is clear that Mr Saville had regard to the evidence of Professor Alderson because he mentions it, and deals with it in the report. The assessors considered the evidence of Professor Alderson. In some respects they did not agree with it, in others that they thought thatit was not relevant to the issues they were considering. The Ombudsman contends that the complaints about ‘misunderstanding evidence’ and arriving at ‘unsound conclusions’ are no more than examples of the Claimant disagreeing with the findings and conclusions of Mr Saville, which raise no point of law. I agree.[52]Mr Havers developed his detailed criticisms in writing through 15 pages of exhaustive analysis in his skeleton to which Mr Maurici responded line for line. He felt constrained to do so despite his underlying submission (which I have accepted) that analysis of this sort is not appropriate when considering the reasoning found in an Ombudsman’s report. I shall resist the temptation to repeat that exercise.[53]I am satisfied that the reasoning and conclusions of the Ombudsman in the context I have indicated (that is that he did not consider it necessary to approach questions of clinical judgment through the Bolam test) is adequate and displays no irrationality.

Cited in 3 later judgments