Mencap, R (on the application of) v Parliamentary and Health Service Ombudsman [2009] EWHC 3559 (Admin)

Case No CO/6118/09[2009] EWHC 3559 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 18th December 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE PITCHFORD
Between
THE QUEEN ON THE APPLICATION OF MENCAPClaimantv
Between
PARLIAMENTARY AND HEALTH SERVICE OMBUDSMANDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr D Wolfe (instructed by Leigh Day & Co Sols) appeared for ClaimantMr J Maurici (instructed by Beechcroft Sols) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE PITCHFORD: The claimant, Mencap, is a highly respected charity promoting among other things the rights of those with mental disabilities and disadvantages. In March 2007 Mencap, having received information from interested families, which gave it cause for concern, asked the health service and local government ombudsman (two separate people) but called for the purpose of this judgment the PHSO (Parliamentary and Health Service Ombudsman) to investigate the complaints of six families in particular into the treatment of deceased young people, three of whom had been cared for both by the NHS and social services and three of whom had been cared for under the auspices of the NHS alone. That was the reason for the joint investigation and although I shall use, for brevity, the initials PHSO to describe the ombudsman, it was the health service ombudsman who dealt with each of the NHS cases with which this claim is concerned.[2]The invitation to conduct that investigation was accepted and the report was submitted to Mencap in draft and extensive representations were made by Mencap in assisting the families who had sought their help.[3]On 17th March 2009 the PHSO sent an embargoed copy of the report to the claimants. It may not have been absolutely complete but it was complete to all intents and purposes. It was a very substantial document in its final form, running I am told to something like 700 pages. On 23rd March 2009 the final version of the report was published and laid before Parliament. Its findings and recommendations have received in general applause from those with interests in this area, including Mencap. Compensation has been awarded by the ombudsman in consequence of the findings made and action is being taken by relevant National Health Trusts and other medical services in consequence.[4]On 21st May 2009 Mencap's solicitors sent a protocol letter to the PHSO complaining about two aspects in particular of the many matters contained in the report. Those two aspects later became the amended grounds in the current claim. The PHSO replied on 9th June repudiating those complaints.[5]On 15th June 2009 Miss Mary Varney, an assistant solicitor with the claimant's solicitors, attended Mencap's head office to review several files. While doing so she discovered the urgent situation which had arisen, namely that if a judicial review claim was to be mounted in respect of the report, it had to take place immediately or virtually so. On the following day the claimant's solicitors issued the claim form. In it section 3 defined the decision in respect of which relief was sought as:
"The matter being challenged is the lawfulness of the conclusions of the reports entitled 'six lies; the provision of public services to people with learning disabilities' (herein and after referred to as 'the report')."
The remedy sought in section 6 was:
"An order quashing the sections of the report... dealing with the obligation to make reasonable adjustments and best interests evaluation; and an order for the ombudsman to reconsider the complaints on behalf of the six families regarding reasonable adjustments and best interests evaluation including all responses by(sic) to the draft version(s) of the report from Mencap and families."
In other words the whole production was under challenge. There was no statement of facts, no grounds and no supporting evidence filed with the claim. The reader was referred in section 5 to the statement of grounds "as set out in letter before claim dated 21st May 2009 in enclosed bundle of documents."[6]On 24th June the claimants lodged and served an amended statement of facts and grounds of challenge. Miss Varney does not explain in her statement why it took so long after receipt of the report to write the pre-action protocol letter, nor why it took 14 days after receipt of the PHSO's letter in response to lodge grounds which complied with CPR 24. No application for an extension of time or to amend the claim has been made, save impliedly today. Of more significance, it seems to me, is the omission to serve the claim upon interested parties affected by it, and I shall return to this subject having considered the re-amended grounds of claim.[7]At the heart of the legal challenge is the claimant's assertion that the PHSO made an error of law. Section 19 subsection (1)(b) of the Disability Discrimination Act 1995, provides in its relevant terms as follows:
"(1) It is unlawful for a provider of services to discriminate against a disabled person— ... (b) in failing to comply with any duty imposed on him by section 21 in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service..."
Section 21(1) provides:
"(1) Where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides, or is prepared to provide, to other members of the public, it is his duty to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change that practice, policy or procedure so that it no longer has that effect."
That duty is recognised by the PHSO at paragraphs 57 to 62 in section 2 of the report at paragraph 96 of the bundle. Furthermore at paragraphs 77 to 81 commencing page 99 of the bundle, the report recognises that public authorities must make their services available to disabled people by taking all reasonable steps to ensure that the design and delivery of services do not place disabled people at a disadvantage. If that standard is not as a matter of fact met, there will be maladministration or service failure.[8]The claimant's case is that the PHSO's acknowledgement of the statutory requirements which set the appropriate standard in the context in which they were investigating was contradicted by the standard which they proceeded to impose upon their judgment whether maladministration or service failure had taken place. At paragraph 46 of the report, at page 94 of the bundle, the standard applied by the PHSO was as follows:
"Having established the overall standard, we then assessed the facts in accordance with the standard. Specifically we assess whether or not an act or omission on the part of the body or individual complained about constitutes a departure from the applicable standard. If so, we then assess whether in all the circumstances that actual omission falls so far short of the applicable standard as to constitute service failure or maladministration."
As a statement of a standard imposed by an ombudsman, those words will be reasonably familiar. However, it is the claimant's case that having acknowledged the existence of a statutory duty of care to be achieved, the PHSO failed to apply it. They exonerated the affected staff or medical practitioner unless the act or omission fell so far short of the applicable standard as to constitute service failure for maladministration. The claimant submits that there was evidence before the PHSO that some of the treating doctors were in breach of section 21(1), but the PHSO failed to find maladministration or service failure because the PHSO applied not the statutory standard but the standard which I have just quoted from paragraph 46.[9]In answer to Mr Wolfe's submissions, Mr Maurici, on behalf of the defendants, submits that the claimant's submissions depend upon reading the report like a statute, which is unjustified. The report should, in its material parts setting out its duties and standard to be applied, be read as a whole. If read as a whole no legal error is revealed. I note that section 21(1) requires a very particular kind of examination. First, whether an existing "practice policy or procedure" makes it impossible or unreasonably difficult for disabled persons to make use of the service, and second, and if so, what steps would have been reasonable in all the circumstances to change that "practice policy or procedure". In my judgment the PHSO manifestly was not engaged in an exercise of deciding whether the practice policy or procedure of any particular medical practitioner made it impossible or unreasonably difficult for disabled persons to make use of his or her service, nor what steps would have been reasonable in all the circumstances to change that practice policy or procedure. What the PHSO was doing was examining and investigating whether the treating obligation of general practitioners had fallen below the standard to be expected of medical practitioners treating disabled patients, to such an extent that the failure could be condemned as maladministration, or a failure of service.[10]Of course I accept that in deciding what was an acceptable standard the PHSO had to bear in mind the existence and nature of the statutory duty. That is why it seems to me the statutory framework was stated with such clarity in the report. But the standard to be achieved was, in my judgment, not an absolute standard measured against section 21. In examining whether service failure or maladministration had taken place, the PHSO would, in the nature of things, have to consider a range of possible responses by the GPs to the patients and the circumstances in which the GP's, having regard to the patient's disability, had to make a judgment. While not using these words as terms of art, there may, for example, have been, on the advice of the PHSO's expert advisers best practice, acceptable practice and failure. Reading some of the passages in the report, in which the PHSO was drawing upon the experience and expertise of her advisers, it is perfectly plain that was the kind of standard which the PHSO was applying in seeking to reach a judgment whether maladministration or failure of service was an appropriate finding. This was not, on the other hand, I accept from Mr Wolfe's submissions, the familiar unvarnished clinical negligence test but the range of reasonable responses would have to take into account the nature of the disability from which the patient was suffering, and its effect upon the doctor's ability to carry out diagnosis and to prescribe treatment effectively, so as to ensure that the disabled patient had effective access to services. That was a judgment which was for the PHSO informed by the evidence and the assistance provided by her expert advisers. Having read passages in the report relevant to this particular claim, it is plainly the question to which she was giving anxious consideration. The claimant may justifiably disagree as to the point at which the PHSO drew the line, contending that the minimum standard should have been higher than the PHSO set it; alternatively, that the evidence revealed that the treating general practitioner fell below the standard even as set by the PHSO. But those seem to me to be disagreements with judgment which it is recognised is for the PHSO and not to be an error of law or arguably an error of law by the application of a false standard. It is, in my view, on a complete reading of the relevant parts of this report not reasonably arguable that the PHSO misunderstood the process in which he was engaged, or that she applied a mistaken legal test to her work. It is perfectly apparent that she did not and knew she was not applying section 21 of the 1995 Act as the first stage of her examination of the evidence. She was bearing it in mind when asking the question to which her investigations were directed namely, whether there had been maladministration or a failure of services.[11]Secondly, the claimants assert that in the case of two of the patients, the PHSO failed to assess whether the general practitioners had complied with guidance issued by the GMC and the department of health. This took place within the context of "best interests decision making", namely the formulation of treatment in the case of a patient with less than a perfect capacity to make a personal decision what was in his or her own best interests. As Mr Wolfe acknowledges, the PHSO set out all the relevant guidance. In the report that guidance is referred to in the amended grounds between paragraphs 70 and 77. The complaint is made that the PHSO did not, in applying that guidance to the evidence in the respective cases, analyse, first, the requirement of the guidance under consideration, and secondly, whether the evidence revealed that the practitioner had fallen below the standard required by that guidance.[12]In order to make this point good, Mr Wolfe referred me to pages 181 of the bundle and following, in which the PHSO describes how she arrived at the conclusion at page 351 that the third oncologist, as he is referred to, did not fall below the standard required. It is clear to me that while the PHSO may not in her analysis have identified precisely the guidance on which she was concentrating, the views which she was seeking and receiving from her expert advisers demonstrate that she had that guidance well in mind. It would be surprising if she had not, since she had rehearsed it in that section of the report to which these investigations were directed.[13]For the second time I agree that there may be room for disagreement with the conclusion reached by the PHSO but it is also my view that there is no realistic prospect of establishing that the PHSO failed to take account of material consideration or failed to give adequate reasons for the conclusions which she reached. For those reasons, and I regret at some length, I agree with the view of the single judge that this permission application should fail on its merits.[14]Before I pass from the merits, I should refer to the decision of the Court of Appeal in R v Local Commissioner for Administration in North and Northeast England ex parte Liverpool City Council [2001] 1 All ER 462. That decision was drawn to my attention by Mr Maurici, in support of his submission that the ombudsman plainly was not making a decision upon section 21 but on a more specific allegation concerning the treatment of patients by individual general practitioners. The decision is of assistance because it does highlight the difference between the task in which an ombudsman may be involved and a parallel structure of a criminal statute. However, I accept the submission of Mr Wolfe that this decision is not authority for the proposition that the existence of a statutory duty or a criminal statute will never be of relevance to the decision that the ombudsman is required to make. As I have acknowledged in the course of this judgment the statutory duties set out in section 19 and 21 were of course relevant to the investigation which the ombudsman was conducting. What I do not accept that it is arguable that it was the statutory duty which should have driven the conclusion to which she ultimately came in the six cases.[15]I return shortly to the procedure which has been adopted. While the PHSO report is undoubtedly the vehicle for this claim, the ultimate target is the treating GPs. While they were not named in the report, the claimants know who they are, because it was the claimants who made the complaint to the ombudsman. Should this claim proceed to a hearing those with the most profound interest in its outcome would, in my view, be the medical practitioners. They were not served, nor have they been served and it is now 9 months since the report was published. They have undoubtedly suffered prejudice in consequence of the claimant's procedural shortcomings. As I indicated in the course of argument, had it not been for this prejudice, then I may well have taken a more generous view as to an extension of time.[16]As it is, I take the view that this is specific prejudice which has resulted from the claimant's failure to bring this claim as soon as reasonably practicable, and it would, in my view, also be inappropriate to permit this review to proceed on that ground also. It follows that the renewed application must be dismissed.[17]MR MAURICI: I am grateful my Lord. There is an existing costs order in the order from the judge on the papers and I do not ask for any further order for costs.

MR JUSTICE PITCHFORD: Thank you very much.

[19]MR WOLFE: My Lord, I envisage my clients will be seeking a transcript of my Lord's judgment. My experience of it that sometimes goes into a bit of a black hole with the transcript process and then even when it comes out of that black hole it relies on the judge to correct the draft. Obviously only the second part of that is in my Lord's direct purview, but perhaps my Lord could address the matter expeditiously when it comes to you. As I say, we will be seeking a transcript.[20]MR JUSTICE PITCHFORD: You are trying to put it nicely, and I will respond nicely. Of course, as soon as I have it I will deal with it. Thank you both very much. I am very sorry to everybody for taking this length of time.[21]MR WOLFE: We are grateful to my Lord.