Miller & Anor v The Parliamentary and Health Service Ombudsman [2015] EWHC 2981 (Admin)

Case No CO/5288/2014

[2015] EWHC 2981 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/10/2015

Before

MR JUSTICE LEWIS

Between

DR KATHERINE MILLERClaimant

DR MARK HOWARTHClaimant

THE PARLIAMENTARY AND HEALTH SERVICE OMBUDSMANDefendant

Jenni Richards QC (instructed by Weightmans) for Claimants

James Maurici QC and Luke Wilcox (instructed by Browne Jacobson) for Defendant

Hearing Hearing dates: 24 and 25/09/15

Judgment

Introduction

[1]This is a claim for judicial review by two doctors, Dr Miller and Dr Howarth, of a report of the Parliamentary and Health Service Commissioner (“the Ombudsman”) of 1 October 2014. By that report, the Ombudsman upheld a complaint made by Mrs Pollard about the medical treatment provided to her late husband, Mr Pollard, in June 2012 and found that, had he received appropriate care from Dr Miller on 15 June 2012, his subsequent death would probably have been avoided.

[2]The Claimants challenge the report on six grounds. First, the first Claimant, Dr Miller, contends that Mrs Pollard had not in fact complained about her and the Ombudsman had no jurisdiction to investigate the care that she provided on 15 June 2012. Secondly, the Claimants contend that the process adopted by the Ombudsman was procedurally unfair for a number of reasons. Thirdly, they contend that the Ombudsman had predetermined the issues before considering their submissions and evidence. Fourthly, they contend that the Ombudsman failed to apply the approach set out in a statement made publicly by the Ombudsman in 1995 which indicated that the Ombudsman would consider whether the care provided fell below that which a reasonable doctor would have provided. Instead, they contend that the Ombudsman adopted a standard of review which was so unclear as to be unlawful. Fifthly, they contend that the Ombudsman failed properly to consider whether there was an alternative legal remedy which should have been used by Mrs Pollard, namely a civil action for damages for negligence. Finally, they contend that it was wrong or unlawful for the Ombudsman to have recommended payment of compensation where the level of compensation reflected that available in court actions. THE FACTS The Care Provided

THE FACTS

[3]Mr Pollard was a patient at the Seal Medical Centre (“the Practice”) in Chichester. The two Claimants practised at that surgery. On 13 June 2012, Mrs Pollard requested a home visit for her husband who was then aged 76 and who had been unwell. Dr Howarth visited, carried out an examination, diagnosed a urinary tract infection and prescribed antibiotics. The clinical notes of the visit record the following (the material in square brackets is inserted in this and the next paragraph to make the notes readily comprehensible):

“Lower abdo [abdominal] pain radiation to penis. Burning dysuria [burning sensation on urination] BOR [Bowels opened regularly] with help of Laxidol [a laxative] Abdo nad [nothing abnormal detected] - ?UTI [possible urinary tract infection] Rx[treatment] Nitrofurantoin [an antibiotic] Capsules 50mg 1 Qds [four times a day] 28 capsule.”

[4]Mrs Pollard telephoned the practice again on 15 June 2012 for advice because Mr Pollard’s condition did not seem to be improving and he was still in pain. Dr Miller spoke to Mrs Pollard but not to Mr Pollard. The notes of the telephone consultation state:

“Spoke to wife – Had 36 hours antibiotics. Still dysuria but is PU ing [passing urine] small amounts and often. Explained still a bit early for tablets to take effect –ct [continue] with meds [medicines].”

[5]Mr Pollard’s symptoms did not improve. On 17 June 2013, at 4 a.m. Mrs Pollard rang the out of hours general practitioner because she was concerned about her husband’s condition. She was put through to the ambulance service. Sadly, Mr Pollard died whilst Mrs Pollard was on the telephone. The cause of death was stated as a burst abscess in the colon secondary to diverticular disease. It seems that the abscess ruptured, causing peritonitis, that is an infection of a membrane in the abdominal wall covering the organs in the abdomen.

The Initial Complaints

[6]Mrs Pollard complained first to the Practice in August 2012. She said that her complaint was about Dr Howarth and his diagnosis that her husband had a urinary tract infection. Mrs Pollard explained that she had contacted the surgery on 15 June 2012 and spoken to Dr Miller but she did not blame Dr Miller who was acting on Dr Howarth’s medical notes. She said that her complaint was that if a correct diagnosis of her husband’s condition had been made and he had been sent to hospital he might have lived. The Practice discussed the matter and sent a response on 24 August 2012 setting out the comments of Dr Howarth on the actions taken by him on 13 June 2012 and those of Dr Miller in respect of her telephone consultation with Mrs Pollard on 15 June 2012. The letter expressed their shock and sadness at the death of Mr Pollard. They explained that they considered that Mr Pollard’s symptoms were suggestive of a urinary tract infection with no signs of peritonitis at the time. They indicated that if Mrs Pollard were dissatisfied with the response she could seek an independent review through the Ombudsman. That reflects the obligation on the Practice to respond to a complaint, indicate whether they considered that any action was needed, and to give details of the right of the complainant to take their complaint to the Ombudsman (see regulation 14(2) of the Local Authority and Social Services and Health Service Complaints (England) Regulations 2009).

[7]Mrs Pollard also complained to the General Medical Council (“GMC”). Her complaint form named both Dr Howarth and Dr Miller. When contacted by the GMC, she confirmed that her complaint to the GMC was, in fact, only about Dr Howarth and the GMC wrote to Dr Miller on 22 August 2012 to confirm that. The GMC investigated the complaint against Dr Howarth and decided to take no further action. The Complaint to the Ombudsman.

[8]On 4 September 2012, Mrs Pollard made a complaint to the Ombudsman. In view of the grounds of challenge, it is necessary to set it out in full:

“I refer to our phone call on 3rd August 2012 my complaint is of Dr Howarth. “On the 13th of June he was called out to visit my husband Mr William Peter Pollard as he was in too much pain to get to the surgery. “Dr Howarth after a short examination diagnosed an urine infection despite my husband saying that he had had similar pain on and off for several months, a course of antibiotics were prescribed. “On Friday 15th I rang the surgery to say he was still in a lot of pain. Dr Miller said to give him pain killers I do not blame Dr Miller at all she was acting on Dr Howarths medical notes he had written about my husband. In the early hours of Sunday 17th June my husbands pain was unbearable and he had become short of breath so I called for an ambulance. On checking on my husband I found him slumped on the bed he had died. The paramedics talked to me over the phone and told me how to apply CPS which I was still doing when they arrived. “They were working on my husband for twenty minutes but were unable to revive him. My complaint is that had my husband been correctly diagnosed and sent to hospital he may well still be alive. “The post mortem showed that he died of a burst abscess on his colon + peritonitis. There were no signs of a urine infection. “I have no intention of leaving the matter unanswered.”

[9]The Ombudsman began the process of deciding whether or not to conduct an investigation into the complaint. At this stage, the Ombudsman understood that the complaint by Mrs Pollard was about the care provided by Dr Howarth, not that provided by Dr Miller. On 13 September 2012, the Ombudsman wrote to Mrs Oliver, the Practice Manager at the Practice, indicating that Mrs Pollard had asked the Ombudsman to investigate her organisation. The letter stated that the “complaint is in reference to the treatment her late husband received from Dr Howarth during a home visit on 13 June 2012”. On 17 September 2012, the Practice responded and provided copies of the relevant medical records to the Ombudsman.

[10]The Ombudsman obtained clinical advice from one of its internal general practitioner advisers in November 2012. That advice was used only for the purpose of assessing whether or not an investigation should be commenced and was not used in the subsequent investigation itself. An assessment form was completed on 29 November 2012 recommending that an investigation be conducted. That form indicated that the bodies to be assessed were the “Seal Medical Group”. The form said that the concerns with the complaint related solely to Dr Howarth. The assessment considered the advice from the clinical adviser. The assessor considered that there were “clear indications of failings around the missed opportunities to complete more in depth examinations on 13 and 15 June which may have resulted in Mr Pollard being referred for investigation and possibly allowed him to receive treatment that avoided him dying from peritonitis”. The form noted that Mrs Pollard would like what was referred to as a systemic remedy and a finding that Dr Howarth was wrong in his approach and also for Dr Howarth to be stopped from practising (the form noted that the Ombudsman could not stop a doctor from practising). Again, under the question of whether there was an alternative remedy available, the form noted that Mrs Pollard was seeking systemic change and a finding that Dr Howarth’s practice was incorrect and that those outcomes were not available through a legal action.

[11]On 7 December 2012, the recommendation that the complaint be investigated was approved in principle by an Assessment Panel. On 12 December 2012, an assessor wrote to Ms Oliver, the Practice Manager, saying that the Ombudsman:

“proposes to investigate Mrs Pollard’s complaint about the care of Mr Pollard received from your Practice. The scope of the proposed investigation is to investigate the care provided by the Practice to Mr Pollard in June 2012 as Mrs Pollard believes that if Mr Pollard had received appropriate care it may have avoided his death. “In line with the requirements of section 11 of the Health Service Commissioners Act 1993 I am writing to ask for your initial comments on the proposal to investigate….. “Dr Howarth has been specifically mentioned in Mrs Pollard’s complaint and we are therefore also seeking any comments he may wish to make at this stage. Please forward the enclosed letter to Dr Howarth. “Any comments that you or Dr Howarth do make will be carefully considered. After we have reviewed these we will write to you and confirm whether we intend to proceed with the investigation. If we do proceed, the investigator will set out the detailed scope of the investigation and the next steps.”

[12]A similar letter dated 7 December 2012 was addressed to Dr Howarth. No such letter was sent to Dr Miller. An investigator was appointed and Ms Oliver and Dr Howarth were notified of that fact on 18 December 2012.

[13]On 14 January 2013, the investigator spoke by telephone to Mrs Pollard. The investigator noted that the proposed scope of the investigation was the care provided in June 2012 and asked Mrs Pollard if there was any particular reason why she only wanted to complain about Dr Howarth and not Dr Miller. The note of the telephone conversation records Mrs Pollard as saying that this was because Dr Miller was guided by the notes of Dr Howarth but that “on reflection she thought that if the second doctor had come out and seen him the course of events might have been different”. She confirmed that she was happy for advice to be obtained on the care provided on both dates (that is the 13 June 2012, when Mr Pollard was seen by Dr Howarth, and 15 June 2012, when Mrs Pollard spoke to Dr Miller). Mrs Pollard confirmed that she was looking for an acknowledgement of failings, an apology and action taken to prevent a recurrence. The investigator asked if she was seeking any financial compensation if the complaint was upheld and Mrs Pollard is recorded as saying “it would help”.

[14]On 17 January 2013, a planning meeting panel was held to agree the scope of the investigation. That meeting is described in a document part of which was prepared before the telephone call with Mrs Pollard on 14 January 2013 and part of which records the discussions of those who attended the meeting on the day. The document summarised the key points of complaint and the key events. The document noted that Mrs Pollard wanted what it described as systemic changes and a finding that Dr Howarth’s practice was incorrect and those were not remedies available through legal action. It dealt with the scope of the investigation, procedural steps and the need to obtain advice from a different clinical advisor (different, that is, from the adviser who had provided advice for the assessment in November 2012). There is a reference to Mrs Pollard not having complained about the second doctor. This was written prior to the telephone call with Mrs Pollard on 14 January 2013. The notes recorded the discussion at the meeting. It noted that Mrs Pollard “initially” thought that the second doctor (Dr Miller) was simply acting on Dr Howarth’s assessment and diagnoses but now felt that Dr Miller could have taken action and this might have altered the outcome. The document records that the panel agreed the “second doctor will be named”. The agreed scope of the investigation was:

“To investigate your complaint that the Practice provided inadequate care to Mr Pollard in June 2012. Mrs Pollard says if Mr Pollard had received appropriate care it may have avoided his death”

The Investigation

[15]On 18 January 2013, the investigator wrote to both Ms Oliver and Dr Howarth (but not at that stage to Dr Miller). Those letters referred to the planning meeting on 17 January 2013, noted the scope of the investigation and the remedies sought by Mrs Pollard.

[16]On 25 January 2013, the investigator wrote to Ms Oliver, the Practice Manager, and Dr Howarth in materially similar terms to the letters sent on 18 January 2013. This time the Ombudsman also wrote to Dr Miller in terms materially identical to the letter sent to Dr Howarth.

[17]The letter to the Practice Manager set out the scope of the investigation and the remedies sought by Mrs Pollard and how the Practice could respond. It included this paragraph:

“As the scope of the investigation will be the care provided to Mr Pollard in June 2012 we will be investigating the care provided by Dr Howarth on 13 June 2012 and Dr Miller on 15 June 2012. As both doctors will be named in the final report I have enclosed a separate letters for them and I would be grateful if you would ensure that they receive the letters.”

[18]Given the grounds in the claim for judicial review, it is necessary to set out the terms of the letter to Dr Miller. The letter to Dr Howarth was in identical terms. “I am writing further this office’s previous contact with the Seal Medical Group to confirm that we are beginning an investigation into Mrs Pollard complaint about the care provided to her husband Mr Pollard. The purpose of this letter is to:• introduce myself as the investigator that will be dealing with the investigation;

• inform you of the nature of the complaint;

• ask you to provide information related to the complaint;

• give the Trust and any individual named in the complaint the opportunity to comment on the complaint; and

• explain the next steps in our investigation. The scope of our investigation will be to investigate: Mrs Pollard’s complaint that the Practice provided unacceptable care to Mr Pollard in June 2012. Mrs Pollard says that if Mr Pollard had received appropriate care it may have avoided his death. Mrs Pollard considers that as a consequence of failings in care Mr Pollard died prematurely and that this has caused her distress Mrs Pollard would like the investigation to confirm any failings in care and she is seeking an acknowledgement and an apology for these. She would also like changes made to prevent any similar failings from happening again and considers that financial remedy would be appropriate for the distress she has been caused. Our function and remit is set out in the Health Service Commissioners Act 1993. This Act empowers us to investigate complaints about the NHS in England. By law, we must give you the opportunity to make initial comments on our decision to investigate. I am therefore writing to invite any initial comments that you may wish to make at this stage. I hope it will be helpful if I explain that in carrying out an investigation, we will determine whether or not there is evidence of service failure and/or maladministration. To do this we assess the service provided against the Ombudsman’s Principles and relevant standards for the service at the time of the matters under investigation (such as GMC, NICE and/or local policies). This process usually involves obtaining and considering advice from the Ombudsman’s clinical advisers, but may also involve obtaining and considering advice from the Ombudsman’s clinical advisers, but may also involve obtaining information and advice from elsewhere. We will then consider whether any service failure or maladministration has led to an injustice, we will uphold the complaint. When carrying out our investigation we take into consideration any action to prevent a recurrence of the events concerned that the organisation concerned has already undertaken or proposed. “In a case where we uphold a complaint and the failings have not yet been put right, we usually make recommendations. These may include, but are not limited to an acknowledgement of failings and an apology, actions to improve a service, and a financial remedy. Further information about our approach to remedy is set out in the Ombudsman’s Principles for Remedy, which is one of the sets of Principles available on our website. You can also find summaries of some of our other investigations on our website, along with out other publications on complaints handling. “The Health Service Commissioners Act gives us broad powers to require any person to supply us with information or to produce documents relevant to our investigation. Most health service bodies have always co-operated with our enquiries and welcome the opportunity to put their side of the story to us. “Under the terms of the Health Service Commissioners Act 1993, each representative body and any person specifically named in the complaint must have the opportunity to respond to each complaint and I would like to clarify when you and any other named person will have a chance to do this. “You may choose to respond and/or forward any additional evidence or comments at the start of our investigation. If there are any other comments that you might wish to add during the course of the investigation please feel free to do so. We would also like to offer you the opportunity to request an interview with us to discuss the complaint should you wish to do so. Please be advised that as the investigation proceeds we might consider it necessary to interview any of the parties concerned with the complaint. “Alternatively, you may be satisfied that your position is fully and accurately represented in the papers which the Ombudsman holds and be happy to wait until we send you a more detailed report of our provisional findings. In any event, you will receive a draft report of the investigation which will give you the opportunity to comment before we issue the final report. The complainant and any other interested parties will have a similar opportunity to comment on the draft report. “Please respond to requests for further information or comment promptly either within the timeframes requested or, if that should not be possible, within alternative timeframes negotiated with us at an early stage following our request. This is to ensure a good level of service for complainants who in many cases will have already been through the complaints process for a considerable period of time.”

• introduce myself as the investigator that will be dealing with the investigation;

• inform you of the nature of the complaint;

• ask you to provide information related to the complaint;

• give the Trust and any individual named in the complaint the opportunity to comment on the complaint; and

• explain the next steps in our investigation.

[19]The sentence in the letter to the Practice Manager referring to Dr Howarth and Dr Miller being named in the complaint, set out in paragraph 17 above, does not appear in the letters to Dr Miller or Dr Howarth. There was a meeting of the Practice to discuss the response to the letters of 25 January 2013. The clear implication is that by late January 2013 Dr Miller knew that the care she provided to Mr Pollard on 15 June 2012 was part of the Ombudsman’s investigation although, as she explained in her witness statement, she was unaware as to the process by which Mrs Pollard’s complaint was, as she put it, broadened to include her.

[20]The Practice responded to the Ombudsman on 29 January 2013 confirming that it did not have anything further to add to its earlier response. At that stage, the only information that the Practice and the two Claimants had was that set out in the letters of 25 January 2013, namely that the Ombudsman was investigating a complaint into the care provided to Mr Pollard in June 2012, They had not seen the letter of complaint itself, the clinical advice obtained in November 2012 as part of the initial assessment or the assessment form.

[21]The Ombudsman then obtained clinical advice from a general practitioner and from a colorectal surgeon. In summary, the general practitioner’s advice was that the practitioner notes recorded that Dr Howarth had taken an adequate history and made an adequate examination of Mr Pollard on 13 June 2013, that the diagnosis of urinary tract infection was reasonable given the symptoms, and it was appropriate to commence a course of antibiotics. The general practitioner adviser considered that a urine sample should have been obtained, and other tests carried out, and advice given on when to seek a review if symptoms were not improving. The adviser considered that Dr Miller should have taken a more thorough history on 15 June 2012, given that Mr Pollard was still in pain despite taking antibiotics for 36 hours. The adviser considered that this should have led to a face to face consultation and an opportunity for further re-examination. In addition, the adviser considered that Dr Miller should have spoken directly to Mr Pollard, or established why he could not come to the phone, and should have given clear instructions as to when to expect recovery and when to contact the doctors again. At that stage, the adviser considered that this failure led to a missed opportunity to re-assess Mr Pollard’s condition but it was difficult to state with any certainty whether this would have led to hospital admission or a different outcome.

[22]The colorectal surgeon advised that a diverticular abscess manifests itself with lower abdominal pain, fever and tenderness. It is a septic condition which, as it progresses, causes abdominal sepsis. He noted that the progress of sepsis to death within a 4 day span made it likely that Mr Pollard had already suffered a perforated diverticular abscess at the time of the first consultation on 13 June 2012. He considered it likely that Mr Pollard’s condition deteriorated between 14 and 17 June 2012.

The Draft Report

[23]On 17 October 2013, the Ombudsman wrote to the Practice Manager and the two Claimants and provided a draft report. The accompanying letter said, amongst other things, the following:

“I enclose with this letter a copy of the draft report setting out the provisional conclusions of our investigation and the recommendations that the Ombudsman is minded to make. If you have any comments on the report, including on its provisional findings, or if you believe there are significant omissions or inaccuracies in the facts as reported, I would be grateful if you would let me know as soon as possible and provide me with any relevant supporting evidence that you have.”

[24]The draft report began with an introductory paragraph in the following terms:

“This is the draft report of the investigation into complaint about the care provided for Mrs Pollard’s husband Mr Pollard (deceased) by the Seal Medical Group (the Practice). This report contains my provisional findings, conclusions and recommendations with regard to Mrs Pollard’s areas of concern.”

[25]The draft report then summarised the complaint and under the heading “The provisional decision” said the following:

“I provisionally find that there was service failure in the care and treatment provided for Mr Pollard by the Practice on 15 June 2012 as a result of which Mr Pollard was not provided with a last chance of survival. Had he received appropriate care on 15 June his subsequent death on 17 June probably would have been avoided. This is an injustice to Mr Pollard and also to Mrs Pollard. I therefore propose to uphold Mrs Pollard’s complaint.”

[26]The draft report then described the Ombudsman’s role and the investigation that had been undertaken. It set out the key events at paragraph 10 to 19. It described the attempts at resolution of the complaint. The draft report then summarised the comments of Mrs Pollard and summarised the advice from the General Practitioner and the surgical advice received. The draft report then set out “provisional findings”. The draft report noted that the GPs caring for Mr Pollard should have acted in line with GMC guidance on good clinical care and set out the relevant principles from that guidance. The provisional findings, so far as Dr Howarth was concerned, were that he had taken an history of the patient on examination as appropriate and in line with the guidance. However, the clinical notes of the consultation were so brief that they did not make it unclear how unwell Mr Pollard appeared to be. It noted that there was no evidence that Mr Pollard’s temperature, blood pressure or heart rate was taken nor that Mr and Mrs Pollard were advised what they should do if the symptoms persisted. Further, a urine sample should have been taken. The conclusion was that although some aspects of the care was in accordance with the GMC guidance, there were omissions which meant that the care fell “so far below this guidance and established good practice that they amounted to service failure”.

[27]So far as Dr Miller was concerned, the provisional finding was:

“That Mr Pollard was showing no signs of improvement despite being treated with antibiotics for thirty six hours, and he did not personally speak to a doctor meant that a further review consisting of a face-to-face consultation and an examination was required. This did not happen instead the second GP essentially accepted the initial diagnosis on the basis of a paper review (consisting of very brief notes that were so brief that they did not give a clear clinical picture of how unwell Mr Pollard seemed on 13 June) and discussing Mr Pollard’s condition with his wife. There is no evidence to indicate that the second GP even established if Mr Pollard was too unwell to come to the telephone. Moreover, Mrs Pollard was merely advised to give the antibiotics more time to work, although a diagnosis of a urine infection had not been confirmed. In fact, as the surgical adviser has explained (paragraph 50), an infection would be expected to respond quite quickly if it were being treated by the correct antibiotics. I conclude that the advice Mrs Pollard was give on 15 June by the second GP was inadequate. No advice was given to contact the Surgery if Mr Pollard did not improve or what a reasonable timeframe for improvement to take place was, as should have been the case. Such care is clearly not in line with GMC guidance or with established good practice (Annex paragraphs 7 and 8). I find such care falls so far below the relevant standard as to amount to service failure.”

[28]In relation to the question of injustice, the draft report noted that Mrs Pollard considered that if appropriate care had been provided Mr Pollard’s serious condition would have been identified sooner and Mr Pollard would still be alive. The draft report concluded that Mr Pollard had no previous history of bowel problems which would have made it very difficult for a GP to diagnose a diverticular abscess. The advice of the GP was that initial diagnosis of a urinary tract infection and treatment with antibiotics was reasonable given the symptoms. The draft report concluded, therefore, that it was unlikely that Mr Pollard would have been admitted to hospital when he was first seen by the GP on 13 June 2012 even if the identified failings in care had not happened.

[29]In relation to the care provided on 15 June 2012, the draft report considered that:

“We acknowledge that it is possible that Mr Pollard might not have recovered had he received appropriate care on 15 June. However, the advice we have received is that this would have been Mr Pollard's last chance of survival and the balance of probabilities is that Mr Pollard would have survived had he been provided with appropriate care on 15 June. I have concluded therefore that the service failure I have identified resulted in Mr Pollard suffering injustice in that he died on 17 June when his death then could probably have been avoided. As a result Mrs Pollard has experienced the injustice of knowing that it is likely that Mr Pollard would have survived if he had been provided with adequate care. This has also caused her further unnecessary distress. I therefore propose to uphold Mrs Pollard's complaint.”

[30]The draft report then set out what it described as “Provisional recommendations”. These were that there should be an open and honest acknowledgement of the identified failings and an apology. There was also a recommendation that there should be a payment of £15,000 to Mrs Pollard in recognition of the distress she had been caused.

[31]The Ombudsman did not provide copies of the advice received from the general practitioner in February 2013 or the surgical advice when providing a copy of the draft report. Copies of the advice were requested and provided in January 2014.

[32]Both Claimants made detailed responses to the draft report and provided their own expert evidence. Dr Miller gave her recollection of her telephone conversation on 15 June 2012 with Mrs Pollard. Dr Miller stated that she understood the purpose of the telephone call was to seek advice as to whether or not it was appropriate for Mrs Pollard to give Mr Pollard paracetamol as pain relief, that Mrs Pollard had not contacted the Practice seeking a clinical review of her husband and that Mrs Pollard had said that there had been no change in her husband’s symptoms. Dr Miller agreed with the description of the key events. She then gave a detailed response to each of the concerns expressed about the care provided by her. A report by Professor O’Dowd was also submitted setting out his views as to the care provided by Dr Miller and on the advice given to the Ombudsman on the likely progression of the condition between 13 and 17 June 2012.

[33]Dr Howarth also responded. He acknowledged that he should have documented more of his clinical assessment. The response indicated that his usual practice was to give advice about when to contact the Practice again. The response accepted that obtaining a urine sample would have been consistent with good practice but that would not, ultimately, have affected the outcome of the case. A report from a general practitioner, Dr Ingeson, was also submitted. He considered that Dr Howarth took an adequate history of the patient and the examination conducted on 13 June 2012 was appropriate and a diagnosis of urinary tract infection was reasonable. He considered that best practice would have been to record temperature, blood pressure and pulse but if they had been checked that would not have altered the diagnosis.

[34]In the light of the submissions made by and on behalf of the Claimants, the Ombudsman sought further advice on a number of occasions. In particular, the Ombudsman raised the question of whether Mr Pollard would have been expected to show some improvement in symptoms. The general practitioner adviser considered that some improvement within 24 to 48 hours would be expected but considered that the exact time frame within which this should occur should not detract from what she considered to be the actual issue, namely the adequacy of the assessment carried out over the telephone on 15 June 2012. The Ombudsman sought further advice from the colorectal surgeon (and from a different colorectal surgeon on one point). The original surgeon remained of the views that he that earlier expressed about the case. He also considered Mr Pollard had symptoms of diverticulitis or diverticular abscess which should have been identified on 13 June 2102. Given that Mr Pollard died on 17 June 2012, he considered that by 15 June 2012, it was likely that the condition would have been septic and that Mr Pollard would have been likely to have displayed a number of symptoms.

[35]The Ombudsman also spoke to Mrs Pollard on 18 February 2014. She said that she had telephoned the surgery on 15 June 2012 because she was worried that her husband did not appear to be improving and she was worried about the amount of pain he was in. She said that she had not telephoned to ask for pain killers but to tell the doctor that her husband was unwell and she was concerned and to ask for advice. She confirmed that Dr Miller said she had not given the antibiotics enough time to work. She said that Dr Miller had not asked if Mr Pollard’s symptoms had changed and she had not asked to speak to Mr Pollard. The Ombudsman also obtained a recording of the out of hours call to the ambulance service made by Mrs Pollard on 17 June 2012. That records Mrs Pollard as saying that her husband’s condition had steadily declined since 13 June 2012.

[36]Copies of the clinical and surgical advice obtained after the draft report were not provided to the Claimants until after the final report was prepared. Similarly, the comments of Mrs Pollard and the recording of the out of hours call were not provided to the Claimants prior to the final report.

The Final Report

[37]On 15 August 2014, the Ombudsman sent the next version of the report. That, so far as the Claimants were concerned, represented the final adjudication on the complaint. The report was still a draft as Mrs Pollard had not yet had the opportunity to comment. The accompanying letter noted the amendments that had been made to the previous draft report. The letter also noted where the Ombudsman disagreed with the expert advice provided on behalf of the two Claimants. The letter noted that the report now set out in more detail Mrs Pollard’s recollection of the telephone call of 15 June 2012 which differed from the recollection of Dr Miller. The letter noted that the notes of the telephone consultation did not support Dr Miller’s recollection but rather supported Mrs Pollard’s account. In particular, the report noted that if the telephone call had really been prompted by a request for advice on pain relief that would have been recorded in the notes but there was no reference to pain relief there. The letter also noted that the view that there should have been some improvement in Mr Pollard’s symptoms after taking antibiotics for 36 hours but referred to the general practitioner’s advice that the real issue was the absence of any assessment rather than the exact period during which the antibiotics would have begun to produce an effect. In relation to the progress of Mr Pollard’s condition, the letter noted that the out of hours call recorded Mrs Pollard as reporting that her husband had steadily declined since 13 June 2012. It referred to the surgical adviser’s comments on Professor O’Dowd’s report and noted that the surgical adviser remained confident that the “progression of Mr Pollard’s condition would have been such that it is likely that he would have been septic on 15 June”. The letter noted that the Ombudsman considered it reasonable for the surgical adviser to make use of his extensive experience of how diverticulitis can develop into an abscess, perforation, peritonitis, sepsis, septic shock and eventual death. That was especially so given that it was consistent with Mrs Pollard’s account of events and the out of hours call. The letter noted that:

“The key point is that Mrs Pollard sought advice from a doctor on 15 June because she was worried about her husband's condition and there is no evidence to indicate that: • her concerns were explored as they should have been in line with GMC guidance; • the telephone consultation was conducted in line with established good practice reflected in the information issued by the MPS and that found on the patient.co.uk website; or • adequate safety netting was put in place.” • her concerns were explored as they should have been in line with GMC guidance; • the telephone consultation was conducted in line with established good practice reflected in the information issued by the MPS and that found on the patient.co.uk website; or • adequate safety netting was put in place.”

[38]On 1 October 2014, the Ombudsman issued her final report. That found that:

“…that there was service failure in the care and treatment provided for Mr Pollard by the Practice on 15 June 2012 as a result of which Mr Pollard was not provided with a last chance of survival. Had he received appropriate care on 15 June his subsequent death on 17 June probably would have been avoided. This is an injustice to Mr Pollard and also to Mrs Pollard. I therefore uphold Mrs Pollard's complaint.”

[39]The final report again set out the role of the Ombudsman, the investigation and the key events. In that regard, the report noted that Mrs Pollard telephoned the Practice again on 15 June 2012 for advice because Mr Pollard did not seem to be getting better and he was still in pain. The report set out a summary of the comments of the Practice and each of the two Claimants in response to the draft report. It also set out the comments of Mrs Pollard to the Ombudsman. The report then summarised the general practitioner advice and the surgical advice received.

[40]The findings of the Ombudsman were as follows: “71. Mrs Pollard complains that the Practice failed to investigate Mr Pollard's symptoms adequately. She says that consequently he was wrongly diagnosed with a urinary tract infection. “72. To provide Mr Pollard with care in line with our principle of 'getting it right' (Annex paragraph 6) the GPs caring for him should have acted in line with GMC guidance on good clinical care (Annex paragraph 7). They should also have provided care in line with established good practice (annex paragraph 8). In Mr Pollard's case this means that they should have:• adequately assessed his condition by taking a history, taking account of his symptoms, listening to what h said and carrying out an examination and further investigation if necessary;

• adequately documented the clinical reasoning underpinning decisions and the care provided;

• Made his care their first concern and provided care that promoted his health and wellbeing and best served his interests; and

• Provided adequate safety netting to ensure that Mr Pollard asked for his symptoms to be reviewed appropriately if they did not improve. “73. When the first GP saw Mr Pollard on 13 June 2012 he took a history and carried out an examination. This was appropriate and in line with GMC guidance as far as it went. However, the clinical notes of the consultation are so brief that it is unclear how unwell Mr Pollard appeared to be. This means that, as well as it being difficult to assess whether the examination on 13 June was adequate, any GP subsequently reviewing the notes would not get a true picture of what exactly Mr Pollard's condition was on 13 June. Such care is not in line with GMC guidance (Annex paragraph 7). “74. In coming to this view I have taken into account the fact that the first GP has recalled that Mr Pollard did not have a fever but there is no evidence to show if his temperature was taken, or that any other basic physical observations such as heart rate and blood pressure were taken. Nor is there any evidence to show that Mr and Mrs Pollard were advised about what they should do if his symptoms persisted despite treatment with antibiotics. “75. Given Mr Pollard's symptoms of lower abdominal pain and pain on urination, an initial working diagnosis of a urinary tract infection was reasonable, as was the decision to treat with antibiotics. However, a urine sample should have been taken either that day or the next to support the diagnosis and adequate safety netting should have been put in place. This was not done. “76. I conclude therefore that although aspects of the care provided on 13 June 2012 were to some extent in line with GMC guidance there are omissions that mean that that care provided fell so far below this guidance and established good practice that they amount to service failure. “77. Mrs Pollard contacted the Practice for advice on 15 June 2012 because, despite Mr Pollard's being treated with antibiotics for 36 hours, she was still concerned about his symptoms and the amount of pain he was experiencing. “78. That Mr Pollard was showing no signs of improvement despite being treated with antibiotics for thirty six hours, and he did not personally speak to a doctor meant that a further review consisting of a face-to-face consultation and an examination was required. This did not happen. “79. Instead the second GP essentially accepted the initial diagnosis of a urine tract infection (although this had not been confirmed) on the basis of a paper review (consisting of notes that were so brief that they did not give a clear clinical picture of how unwell Mr Pollard seemed on 13 June 2012) and a limited discussion with Mr Pollard's wife. In coming to this view I have taken into account the fact that notes broadly support Mrs Pollard's recollection of events (paragraphs 47-49) that she was just advised to give the antibiotics more time to work. There is no evidence to indicate that the second GP asked Mrs Pollard for more detailed information regarding Mr Pollard's condition and the extent of his pain or why she was worried, or that she even established if Mr Pollard was too unwell to come to the telephone. Nor is there any evidence to show that Mrs Pollard was given advice to contact the Surgery if Mr Pollard did not improve or what a reasonable timeframe for improvement to take place was. Such care is clearly not in line with GMC guidance or with established good practice (annex paragraphs 7 and 8). I find that such care falls so far below the relevant standard as to amount to service failure. “80. I have provisionally found that aspects of the care provided for Mr Pollard on 13 June 2012 amounted to service failure. I have also found that the care provided for him on 15 June 2012 amounted to service failure. Such care is not in line with our principles of good administration (Annex paragraphs 5 and 6).”

• adequately assessed his condition by taking a history, taking account of his symptoms, listening to what h said and carrying out an examination and further investigation if necessary;

• adequately documented the clinical reasoning underpinning decisions and the care provided;

• Made his care their first concern and provided care that promoted his health and wellbeing and best served his interests; and

• Provided adequate safety netting to ensure that Mr Pollard asked for his symptoms to be reviewed appropriately if they did not improve.

[41]The report then dealt with the question of whether there had been an injustice and recorded the following:

“81. Mrs Pollard believes that Mr Pollard would still be alive if appropriate care had been provided by the GPs attending him because the serious nature of his condition would have been identified sooner. Mrs Pollard told us that Mr Pollard's death and particularly the way in which he died has caused her considerable distress. “82. Once we have decided whether there has been service failure using our usual approach (as set out in the Annex paragraphs 2 to 3) we then go on to decide whether the injustice identified by the complainant (in this case Mr Pollard's death and the distress Mrs Pollard has been caused by his death) arose in consequence of that service failure. In deciding this we consider the evidence we have seen and the clinical advice we have received and make a decision on the balance of probabilities whether the injustice arose in consequence of the service failure. “83. Mr Pollard died from a common complication of a common condition. “84. However, the fact that Mr Pollard had no previous history of bowel problems would have made it very difficult for a GP to diagnose a diverticular abscess. The GP Adviser said that the initial diagnosis of a urinary tract infection and treatment with antibiotics on 13 June 2012 was reasonable given Mr Pollard's initial symptoms. I have concluded therefore that it is unlikely that Mr Pollard would have been admitted to hospital when he was seen by the first GP even if the identified failings in care on 13 June 2012 (paragraphs 55 to 58) had not happened. “85. This investigation has identified service failure on 15 June 2012 that meant that Mr Pollard was not provided with an opportunity to have a face-to-face consultation despite the fact that he had shown no signs of improvement after thirty six hours of treatment with antibiotics, and his wife was concerned about him. Nor were any appropriate safety netting measures put in place. The GP Adviser told me that had Mr Pollard had appropriate care on 15 June he was likely to have been diagnosed with an acute abdomen and admitted to hospital for investigation. The Surgical Adviser has additionally said that although he could not specify exactly what Mr Pollard's chances of survival would have been, it is likely that had Mr Pollard been admitted to hospital on 15 June his death would have been avoided. This would have been his last chance of survival. I have concluded therefore that the identified service failure meant that Mr Pollard was not provided with a 'last chance' opportunity to have lifesaving care and treatment. “86. We acknowledge that it is possible that Mr Pollard might not have recovered had he received appropriate care on 15 June 2012. However, the advice we have received is that this would have been Mr Pollard's last chance of survival and the balance of probabilities is that Mr Pollard would have survived had he been provided with appropriate care on 15 June. I have concluded therefore that the service failure I have identified resulted in Mr Pollard suffering injustice in that he died on 17 June when his death then could probably have been avoided. As a result Mrs Pollard has experienced the injustice of knowing that it is likely that Mr Pollard would have survived if he had been provided with adequate care. This also caused her further unnecessary distress. I therefore uphold Mrs Pollard's complaint.”

[42]The recommendations were that the Practice should provide Mrs Pollard with an open and honest acknowledgement of the failings identified in paragraphs 55 to 61 of the report and an apology. The Ombudsman also recommended that the Practice pay Mrs Pollard £15,000 “in recognition that, on the balance of probabilities, her husband’s death could have been avoided and in recognition of the distress that she had been caused as a result of the service failure” identified by the Ombudsman. The conclusion of the Ombudsman was expressed in paragraph 92 of the report in the following terms:

“92. Having studied the available evidence and taken account of the clinical advice I have received, I have found that the care and treatment provided to Mr Pollard fell so far below the applicable standard as to be a service failure. I concluded that as a consequence of the service failure this investigation has identified that had Mr Pollard received appropriate care on 15 June 2012, his subsequent death on 17 June would probably have been avoided and Mrs Pollard has been caused the further injustice of unnecessary distress. I therefore uphold Mrs Pollard's complaint about the practice.”

THE STATUTORY FRAMEWORK

[43]Section 1 of the Health Service Commissioners Act 1993 (“the Act”) provides that there shall continue to be a Health Service Commissioner (referred to in this judgment as the Ombudsman) to conduct investigations under the Act.

[44]Initially, the Ombudsman had power to investigate the actions of bodies referred to in the Act as health service bodies. Those bodies do not include doctors such as the Claimants. The general remit of the Ombudsman in relation to health service bodies is set out in section 3(1) of the Act in the following terms. “(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.”

[45]The Act was amended by the Health Service Commissioners (Amendment) Act 1996 (“the 1996 Act”). Section 2A of the Act provides, so far as material, that: “2A Health Service Provides subject to investigation (1) Persons are subject to investigation by the Commissioner if they are or were at the time of the action complained of — (a) persons (whether individuals or bodies) providing services under a contract entered into by them with the National Health Service Commissioning Board under section 84, 100 or 117 of the National Health Service Act 2006; ….. (c) individuals performing in England primary medical services or [primary dental services in accordance with arrangements made under section 92 or 107 of that Act (except as employees of, or otherwise on behalf of, a health service body or an independent provider) ….

[46]Such persons are referred to in the Act as family health service providers (see section 2A(4)(a) of the Act). Each of the Claimants falls within the definition of family health service providers. The material provisions of section 3 of the Act, for present purposes, provide that: (1A) Where a family health service provider has undertaken to provide any family health services and a complaint is duly made to the Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of—(a) action taken by the family health service provider in connection with the services,

(b) action taken in connection with the services by a person employed by the family health service provider in respect of the services,

(c) action taken in connection with the services by a person acting on behalf of the family health service provider in respect of the services, or

(d) action taken in connection with the services by a person to whom the family health service provider has delegated any functions in respect of the services, the Commissioner may, subject to the provisions of this Act, investigate the alleged action. “(2) In determining whether to initiate, continue or discontinue an investigation under this Act, the Commissioner shall act in accordance with his own discretion. “(3) Any question whether a complaint is duly made to the Commissioner shall be determined by him. “(4) Nothing in this Act authorises or requires the Commissioner to question the merits of a decision taken without maladministration by a health service body in the exercise of a discretion vested in that body. “(5) Nothing in this Act authorises or requires the Commissioner to question the merits of a decision taken without maladministration by— (a) a family health service provider, (b) a person employed by a family health service provider, (c) a person acting on behalf of a family health service provider, or (d) a person to whom a family health service provider has delegated any functions. ….. “(7) Subsections (4) to (6) do not apply to the merits of a decision to the extent that it was taken in consequence of the exercise of clinical judgment.

[47]The jurisdiction of the Ombudsman in relation to family health service providers such as the Claimants arises, therefore, where a complaint is made of injustice or hardship occurring in consequence of action taken by the family health service provider. In practice, the Ombudsman considers that injustice or hardship arising out of a failure in a service provided by a family health service provider, a failure to provide a service or maladministration falls within the scope of section 3(1A) of the Act. Furthermore, the prohibition on the Ombudsman conducting investigations in respect of actions taken in the exercise of clinical judgement contained in section 5 of the Act was removed by section 6 of the 1996 Act. The provision in section 3(5) of the Act that the Ombudsman cannot question the merits of decisions taken without maladministration was also modified by the addition of section 3(7) of the Act. As a result, the Ombudsman may investigate, and question the merits of, action taken in the exercise of clinical judgement.

[48]Section 4(1) of the Act provides:

“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.”

[49]Section 9 of the Act sets out requirements relating to complaints made to the Ombudsman. The requirements include, amongst others, the following requirements set out in section 9 of the Act: “(2) A complaint must be made in writing. “(3) 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.” (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—

[50]The procedure in respect of an investigation is governed by section 11 of the Act which provides, so far as material, that “(1A) Where the Commissioner proposes to conduct an investigation pursuant to a complaint under section 3(1A), he shall afford-(a) to the family health service provider, and

(b) to any person by reference to whose action the complaint is made (if different from the family health service provider), an opportunity to comment on any allegations contained in the complaint. ….. “(2) An investigation shall be conducted in private. “(3) In other respects, the procedure for conducting an investigation shall be such as the Commissioner considers appropriate in the circumstances of the case, and in particular— (a) he may obtain information from such persons and in such manner as he thinks fit, and (b) he may determine whether any person may be represented, by counsel or solicitor or otherwise, in the investigation.”

[51]Section 14 of the Act deals with the reports that the Ombudsman must, or may, make in respect of an investigation. The material provisions are as follows: “(1) In any case where the Commissioner conducts an investigation pursuant to a complaint under section 3(1) he shall send a report of the results of the investigation —(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 who at the time the report is made provides the service, or has the function, in relation to which the complaint was made, and

(d) to any person who is alleged in the complaint to have taken or authorised the action complained of. ….. “(3) If after conducting an investigation it appears to the Commissioner that— (a) the person aggrieved has sustained such injustice or hardship as is mentioned in section 3(1), (1A) or (1C)], and (b) the injustice or hardship has not been and will not be remedied, he may if he thinks fit lay before each House of Parliament a special report on the case. “(4) The Commissioner — (a) shall annually lay before each House of Parliament a general report on the performance of his functions under this Act, and (b) may from time to time lay before each House of Parliament such other reports with respect to those functions as he thinks fit. “

THE ISSUES

[52]Against that background, in the light of the grounds as set out in the claim form and developed in written and oral submission, the issues which arise in this challenge are:(1) was there a complaint about the actions of the First Claimant, Dr Miller, which the Ombudsman had the power to investigate?

(2) did the investigative and decision-making process of the Ombudsman comply with the requirements of procedural fairness?

(3) would a fair-minded and impartial observer conclude that there was a real risk that the Ombudsman had approached the complaint with a closed mind and predetermined the outcome of the investigation?

(4) did the Ombudsman apply the wrong test or fail to articulate a clear test for assessing whether there had been injustice in consequence of actions on the part of the Claimants within the meaning of section 3(1A) of the Act?

(5) had the Ombudsman commenced or continued the investigation in breach of section 4(1) of the Act, or misunderstood the terms of that subsection, bas the complainant had an alternative remedy available, namely a civil claim for damages for negligence?

(6) was the Ombudsman’s approach to recommending the payment of financial compensation in clinical judgment cases unlawful? THE FIRST ISSUE – THE SCOPE OF THE COMPLAINT.

[53]Ms Richards Q.C., on behalf of Dr Miller, submitted that the complaint made by Mrs Pollard to the Ombudsman on 4 September 2012 was only a complaint about the actions taken by Dr Howarth on 13 June 2012 and was not a complaint about the actions of Dr Miller on 15 June 2015. Ms Richards submitted that the complaint could not reasonably be interpreted as a complaint about the actions of Dr Miller. Indeed, she submits, that was how the Ombudsman herself interpreted the complaint as appears from, amongst other documents, the letters written on 13 September 2012 and 12 December 2012, and the assessment form which indicated that the complaint was about the actions of Dr Howarth and he was a person named in the complaint. That interpretation, submits Ms Richards, is also consistent with Mrs Pollard’s previous stance in that she had not complained to the GMC or the Practice about Dr Miller. So far as Mrs Pollard expressed the view in the telephone conversation on 14 January 2013 that, on reflection, she thought that if Dr Miller had come out the course of events might have been different did not amount to a complaint about the actions of Dr Miller and was not, in any event, a complaint in writing as required by section 9(2) of the Act.

[54]Mr Maurici Q.C. on behalf of the Ombudsman, submitted that the decision of the Ombudsman to treat the complaint as a complaint about the actions taken by both Dr Howarth and Dr Miller, particularly in the light of the conversation with Mrs Pollard, was one that was reasonably open to the Ombudsman.

[55]The general principles governing the scope of complaints was established by the Court of Appeal in R (Cavanagh) v Heath Service Commissioner for England [2006] 1 W.L.R. 1229. There the complainant’s daughter had been diagnosed as having a vitamin B12 deficiency. The complainant complained about the failure of the health service provider, namely an NHS Trust, to provide treatment for his daughter’s condition. The Ombudsman, in her report, however, found that the diagnosis itself was unwarranted and made a series of adverse findings about the professional competence of the two doctors involved with making and supporting the diagnosis. The doctors contended that the Ombudsman had exceeded her powers in doing so. The Court of Appeal held:

“16 Certain clear propositions emerge from the legislation. First, the commissioner's functions are limited to the investigation of complaints: she has no power of investigation at large. Secondly, the statutory discretions which she possesses, while generous, go to (a) whether she should embark upon or continue an investigation into a complaint (section 3(2)) and (b) how an investigation is to be conducted (section 11(3)). They do not enable her to expand the ambit of a complaint beyond what it contains, nor to expand her investigation of it beyond what the complaint warrants. This legislative policy is emphasised by the distinction contained in section 11 between persons by reference to whose action the complaint is made and who are automatically entitled to respond, and others who may become implicated but who enjoy no such automatic right. In the present case, one consequence of this scheme was that, although they were interviewed in the course of the investigation, the first the two doctors knew of the full criticism they were facing was when they were sent the draft report for the purpose only of proposing factual adjustments to it. “17 This does not mean that the ambit of every complaint or the scope of every inquiry is a question of law: it is for the commissioner not only to decide what constitutes a discrete complaint but to decide what questions it raises and to investigate them to the extent she judges right. But there are legal limits. One may well be (though we did not need to hear full argument on it) that if she does not elect to discontinue an investigation she cannot truncate it. Another is that how she investigates a complaint is subject not only to the express requirement of notice to those directly implicated (section 11(1)) but to the common law's requirements of fairness in so far as the statute itself does not restrict them. A third, central to these appeals, is that a point may come at which the pursuit of an investigation goes beyond any admissible view either of the complaint or of what the statutory purpose of investigation will accommodate.”

[56]Similarly, the High Court considered that the question is whether the interpretation placed by the Ombudsman on the scope of the complaint was an interpretation that was reasonable in the circumstances: see R (Morris) v The Health Service Commissioner and Guys and St Thomas’ NHS Foundation Trust

[2014] EWHC 4364

(Admin.).

[57]Against that background, the relevant facts are these. Mrs Pollard made a written complaint. She was concerned that if her husband had been properly treated he would have been taken to hospital and would not have died. She considered that the doctor who examined him, Dr Howarth, was at fault as he had misdiagnosed Mr Pollard’s condition. She did not consider the second doctor, Dr Miller, was at fault as she believed that Dr Miller was relying on Dr Howarth’s notes. The relevant staff in the Ombudsman’s office initially considered that the complaint was about the action taken by Dr Howarth and decided to investigate the complaint. The investigator who was appointed considered there was ambiguity about whether or not the complaint was about the action taken by Dr Miller as well as Dr Howarth and contacted Mrs Pollard. Mrs Pollard considered that, on reflection, if Dr Miller had acted differently the course of events might have been different, that is, Mr Pollard might not have died. She agreed that the investigator should obtain advice about the care provided on both dates, that is the 13 and 15 June 2012. The investigator did investigate the actions of both doctors. Both doctors knew that and participated in the investigation (the question of whether the procedure followed was fair is considered below). In those circumstances, in my judgment, the two key questions are(a) was it reasonable of the Ombudsman to interpret the complaint made Mrs Pollard on 4 September 2012 as being about the action of both doctors and

(b) was it permissible for the Ombudsman to re-consider the scope of the complaint having first considered that it concerned the actions of Dr Howarth on 13 June 2012?

[58]In relation to the first question, it is correct that Mrs Pollard’s letter of 4 September 2012 refers to a complaint about the treatment given by Dr Howarth. More fundamentally, however, the injustice that Mrs Pollard is complaining about is that her husband had died when, if he had been given proper care, he would have been taken to hospital and would have survived. She refers in her letter of complaint to the examination and diagnosis by Dr Howarth on 13 June 2102. She also referred in the complaint to the conversation she had with Dr Miller on 15 June 2012. Certainly, Mrs Pollard considered that the cause of the injustice was the diagnosis made by Dr Howarth on 13 June 2012. She did not consider, initially, that Dr Miller was at fault because she considered that Dr Miller was acting on the basis of the notes prepared by Dr Howarth. It would not, however, be unreasonable to read the letter as stating that Mrs Pollard is complaining about the treatment that failed to avoid her husband’s death and, whilst she considered the person at fault was Dr Howarth not Dr Miller, she was not seeking to limit the scope of the investigation of the Ombudsman in respect of the actions of that led to the death of her husband.

[59]On the second question, the Ombudsman was entitled to reconsider the scope of the complaint and to determine whether or not she was investigating all the matters raised by the complaint. The Ombudsman’s remit is to investigate complaints about injustice. She has a wide discretion as to how to set about that. If, having decided to investigate and whilst in the process of defining the scope of the investigation, the Ombudsman wishes to reconsider the scope of the complaint and, indeed, to seek clarification from the complainant as to the matters encompassed within that complaint, she is entitled to do so. The investigator here was, therefore, entitled to reconsider the scope of the investigation, and act accordingly, provided that the complaint could reasonably be interpreted as complaining about the actions to be investigated. The complaint here could reasonably be read as covering the actions of both doctors leading to the alleged injustice. The Ombudsman, therefore, did not act unlawfully in investigating the actions of both doctors in relation to the injustice allegedly suffered, that is the death of Mr Pollard.

[60]If that conclusion were wrong, the position would, in my judgment, be as follows. Mrs Pollard wished to complain about the death of her husband. In her written complaint, Mrs Pollard had asked the Ombudsman to investigate the actions of Dr Howarth and had orally asked that the Ombudsman investigation the actions of Dr Miller. That is what the Ombudsman did investigate. The two doctors participated in the investigation. As a matter of law, the Ombudsman had jurisdiction to investigate that matter and both doctors were persons whom the Ombudsman had power to investigate: see sections 2A and 3(1A) of the Act. The sole question then, on this hypothesis, is whether the requirement in section 9(2) of the Act that the complaint be in writing was met and, if not, whether that meant that the investigation was unlawful. My provisional view would be that there had been substantial compliance with the requirements of section 9(2) of the Act. The injustice complained about, namely the death of Mr Pollard, was the subject of a written complaint. That complaint specifically complained about the actions of one doctor, Dr Howarth, and referred to the actions of the other doctor, Dr Miller (although, on this hypothesis, did not specifically include a complaint about Dr Miller’s actions). The complainant did subsequently confirm that she was concerned about the actions of the other doctor and agreed that the Ombudsman should obtain advice about the actions of Dr Miller. The investigation then proceeded on the basis that the actions of the doctors on 13 and 15 June 2012 (both events being referred to in the written complaint) would be investigated. In my judgment, that would be sufficient compliance with the requirement of section of section 9(2) of the Act. As, ultimately, I consider that the Ombudsman was entitled to re-consider the scope of the complaint and to interpret it as including the actions of both doctors, it is not necessary to reach a final conclusion on this alternative issue. For the reasons given in paragraphs 58 to 59 above, the Ombudsman did not act unlawfully in investigating whether there had been an injustice, namely the death of Mr Pollard in circumstances which were avoidable, in consequence of the actions of either Dr Howarth or Dr Miller. The first ground of challenge, therefore, is not made out.

THE SECOND ISSUE – PROCEDURAL FAIRNESS

[61]The Claimants contend that the Ombudsman, in investigating a complaint of injustice, is required to observe the common law principles of procedural fairness. The Claimants contend that the investigative process here was unfair for each of the following reasons. The First Claimant, Dr Miller, contends that the Ombudsman failed to make clear that the investigation included her actions. Secondly, the Ombudsman did not disclose the evidence and material relied upon in deciding whether to undertake an investigation. Thirdly, the Ombudsman did not provide to the Claimants, at a formative stage in the process, the evidence upon which the Ombudsman proposed to rely so to enable the Claimants to consider and respond fully to any provisional or final decisions with the expert reports being provided only upon request and, allegedly, after the Defendant had reached conclusions adverse to the Claimant. Fourthly, the Ombudsman did not provide the Claimants with copies of evidence obtained after providing the draft report (that is, further evidence from the general practitioner adviser, and advice from the original, and a second, colorectal surgeon, factual observations made by Mrs Pollard, and the transcript of the out of hours call Mrs Pollard made on 17 June 2012). The Ombudsman contends that the procedure adopted satisfied any requirements of procedural fairness. The Ombudsman contends that the Claimants were given an opportunity to comment early on in the investigation or to await the provisional report and comment upon that and they did so and provided evidence and that, she submits, was sufficient to satisfy the requirements of procedural fairness.

Discussion

[62]In terms of the obligations on the Ombudsman, first, section 11(1A) of the Act requires that where an investigation is undertaken into the actions of a family health provider (here Dr Miller and Dr Howarth), that person must be afforded “an opportunity to comment on any allegations contained in the complaint”.

[63]Secondly, the common law requires that the Ombudsman acts in a way that satisfies the requirements of procedural fairness. What will be required by way of fairness depends upon the circumstances. Those circumstances include the fact that a decision or finding of the Ombudsman may have serious reputational or other consequences for the individuals whose actions are being investigated. It may have financial repercussions if the Ombudsman recommends the payment of compensation. Further, the nature of the Ombudsman’s jurisdiction needs to be borne in mind. It is an investigatory jurisdiction not an adversarial one. Considerable discretion is given to the Ombudsman as to the precise way in which she investigates complaints. Section 11(3) of the Act itself recognises that the “procedure for conducting an investigation shall be such as the Commissioner considers appropriate in the circumstances of the case”. The essential requirement, recognised both by section 11 of the Act, and by the common law, is that the gist of the allegations be given with sufficient particularity to enable the person concerned to have a meaningful opportunity to comment upon the allegations. Provided that is done, the precise way in which the Ombudsman investigates complaints, and the precise way in which the person concerned is given the opportunity to comment on those allegations, will be a matter for the Ombudsman.

[64]In general terms, the Ombudsman may give the person concerned the opportunity to comment on the allegations at the outset of, or during, the investigation. In order to satisfy the requirements of section 11, and the common law, sufficient information about the details of the allegations will need to be provided. That can be done at an early stage in the investigation. Alternatively, the Ombudsman can undertake the investigation, obtain information, and prepare a draft or provisional report and allow the person concerned the opportunity to comment upon the provisional findings in that report. Again, the provisional report must provide sufficient detail to enable the person concerned to be able to respond in a meaningful fashion. Furthermore, the investigator will need to consider the response, and any evidence provided, in an open-minded and conscientious way before reaching final conclusions on any relevant matter.

[65]Before turning to the specific allegations of unfairness made in the present case, it is helpful to consider whether the basic procedure adopted by the Ombudsman was capable of complying with the requirements of section 11(1A) of the Act and the common law. In the present case, as is clear from the letters sent on 25 January 2013, the Ombudsman informed the two Claimants that the scope of the investigation was the complaint that the Practice provided unacceptable care to Mr Pollard in June 2012 and that, as a consequence of failings in the care, Mr Pollard died prematurely. The Claimants were given the opportunity of responding, and providing any evidence either at the start of the investigation or to make comments during the course of the investigation. They were offered the opportunity to discuss the complaint if they wished. Alternatively, the Claimants were given the opportunity to await the draft report and provisional findings and to comment on those.

[66]In the circumstances, that approach would be sufficient to satisfy the requirements of section 11 of the Act and the common law. There may be an issue as to whether Dr Miller, in particular, had sufficient details at the start of the investigation as to the nature of the allegations against her to enable her to make a meaningful response. In the case of Dr Howarth, he knew that the thrust of the complaint against him was that his diagnosis on 13 June 2012 was incorrect although other specific matters (such as the allegation about the failure to make adequate notes of the consultation) were not known at the start of the investigation. However, the draft report fully set out the allegations made and summarised the gist of the medical advice received. The draft report provided sufficient information to enable each of the Claimants fully to understand what was alleged against each of them and to respond. Furthermore, on the facts of this case, the Ombudsman did conscientiously consider, as part of her investigation, the comments and the evidence put forward by the two Claimants. That is apparent from the detailed letter sent by the Ombudsman to the Practice on 25 August 2014 referred to above. The Ombudsman carried out further inquiries as part of consideration of the points raised by the Claimants and she explained her conclusion on those matters. Having regard to the contemporaneous documentation, it is clear that the Ombudsman did approach the comments and evidence given on behalf of the Claimants in response to the draft report, and the provisional findings, with an open-mind as part of the process of investigation. In general terms, there is nothing procedurally unfair in terms of her proceeding with her investigation in this type of case in this way.

[67]I have considered carefully the evidence of Mr Jack Kellett filed on behalf of the Ombudsman. He was employed by the Ombudsman as an Investigations Manager in 1996 and, since 2003, has been a Director. He did not, however, have any personal involvement in the investigation of Mrs Pollard’s complaint or any aspect of the decision which was reached. In his witness statement, he refers to the fact that draft reports are draft, and that the findings are provisional. He states that providing the draft report to those concerned enables them to consider whether the contents are accurate and gives them an opportunity to dispute the provisional findings or recommendations or accept them. He does refer, however, to instances where, in the light of comments, there was a “decision to overturn a provisional view” and says that was “usually approved by a Director of Investigations”.

[68]The language used by Mr Kellett is not apt language. If he intended to suggest that the draft report in some way represented a decision which had to be overturned, in the sense of there being some form of presumption that it would stand, or some burden on those concerned to overturn a decision already taken, or if there was some special process requiring the involvement of senior managers before a draft report were reviewed, that would involve a real risk of procedural unfairness. The Ombudsman is investigating a complaint. As part of that process, she currently makes provisional findings and enables individuals to respond, as part of the investigative process, to any factual or other matter contained in the draft report. That may be the first occasion when the substance of allegations are set out and the first meaningful opportunity for them to respond. Any presumption or the imposition of any particular burden on a person concerned to demonstrate that the provisional findings should be “overturned” runs a real risk of there being a breach of section 11 or of the common law of procedural fairness. In the present case, however, and irrespective of the language used by Mr Kellett (who did not have any involvement with this investigation), it is clear from the contemporaneous documents, in my judgment that, the Ombudsman did carefully and conscientiously consider the points made, and the evidence submitted, on behalf of the Claimants as part of the process of investigation and not on the basis that a decision had already been taken. Any involvement by senior managers was part of the normal process of investigation carried on within the Ombudsman’s office and not by reason of any procedural or other burden being placed in the way of a review of the provisional findings. In general terms, therefore, and subject to consideration of the particular points made by the Claimants, giving the Claimants the opportunity of responding to the allegations by means of responding to a draft report containing provisional findings is capable of satisfying the requirements of procedural fairness. The Specific Complaints.

[69]First, it is said that the Ombudsman failed to make it clear to Dr Miller that the scope of the investigations included her actions. In my judgment, there is no basis for reaching that conclusion. It is clear, in my judgment, that Dr Miller knew, or should have known, by the end of January 2013 that her actions were the subject of investigation. That is clear from the letter sent to her on 25 January 2013. It should have been clear that the complaint was into the care provided in June 2012 and that Dr Miller was a named person who would be given the opportunity to comment on the allegations. It may have been preferable if the letter to Dr Miller had specifically referred to her actions being investigated (as the letters to the Practice Manager dated 18 and 25 January 2013 did). Dr Miller knew, however, that the Practice Manager had received the letter of 18 January 2013 and, it seems, the letter of 25 January 2013 and knew the contents as the matter was discussed at a practice meeting after receipt of the letters (see paragraphs 14 to 16 of Dr Miller’s witness statement). In any event, even if the factual assertion that it was not made clear to Dr Miller that the scope of the investigation had been widened to include her were correct, the fact is that she was provided with the draft report and provisional findings. At that stage she knew what was being alleged in respect of the care that she had provided on 15 June 2012 and knew that her actions were being investigated. Dr Miller had the opportunity to respond (and did so and submitted evidence). There was no procedural unfairness in the way that Dr Miller was informed of the fact that her actions were the subject of investigation.

[70]Secondly, the Claimants contend that there was a failure to share with them the evidence and material relied upon in deciding whether to undertake an investigation. In my judgment, neither section 11(1A) of the Act nor the common law requirements of procedural fairness required that such evidence or material be disclosed. Section 11 of the Act requires an opportunity to comment on the allegations contained in a complaint, not on whether an investigation should be undertaken. Still less does it require disclosure of evidence or material relevant to that question. Similarly, procedural fairness would not, in general, in my judgment require the Claimants to be given the opportunity to comment on whether or not an investigation should be undertaken, still less to require the disclosure of evidence or material relied upon in deciding to embark upon an investigation.

[71]That said, there were unusual features of the way in which the Ombudsman went about the decision to carry out an investigation although those features did not render the decision to investigate, nor the investigation itself, unlawful. The Ombudsman did write both to Dr Howarth (by letter dated 7 December 2012) and the Practice (by letter dated 12 December 2012) stating that they were proposing to investigate and asking for comments by 21 December 2012 after which date they would be told if the investigation was proceeding. In fact, so far as one can tell, the decision to investigate had been taken on 7 December 2012. The Ombudsman submitted that that was a decision in principle and that the final decision to investigate was taken later. Mr Kellett in his witness statement states that once a decision to investigate in principle had been taken by the Assessment Panel, persons concerned were asked for their comments before a final decision to investigate was taken. Again, Mr Kellett could not comment on this investigation. Mr Maurici drew attention to a log of events and an entry for 13 March 2013 which records “Case accepted for investigation”. There is no documentary evidence of any such decision being taken. There is no witness statement explaining the sequence of events in this case. The entry in the log appears to be inconsistent with what actually happened. The investigator was appointed and clinical advice was sought and received and the investigation was underway all long before 13 March 2013. Furthermore, the suggestion that a decision was taken in March 2013 to investigate is inconsistent with what the Ombudsman told the Practice and each of the Claimants. The letter dated 25 January 2013 to the Practice Manager told her that the Ombudsman was writing to confirm the scope of the investigation and “advise you on how the investigation will proceed”. The letters of 25 January 2013 to Dr Howarth and Dr Miller confirmed that the Ombudsman was beginning an investigation (see the opening words of the letter set out at paragraph 18 above). It is unfortunate that the letters and documentation provided by the Ombudsman lack clarity as to the precise sequence of events and appear in part to be contradictory or inconsistent. It is regrettable that no person has made a witness statement on behalf of the Ombudsman to explain the sequence of events by which the decision was taken to investigate this particular complaint.

[72]Ultimately, however, none of that amounts to unfairness in the way in which the investigation was conducted. First, the Claimants’ actual ground of complaint is that the evidence and material on which the Ombudsman relied to undertake the investigation was not disclosed at the stage of undertaking the investigation. There is no statutory or common law requirement that that be done. Dr Miller is not complaining that she was not given the opportunity to comment on whether there should be an investigation. Dr Howarth is not complaining about the fact that he was asked for comments about whether an investigation should be undertaken when, it appears, that the decision to conduct one had already been taken. Secondly, in reality, no unfairness occurred notwithstanding those matters. The Practice (which includes Dr Howarth and Dr Miller) had the opportunity up to the 21 December 2012 to make any comments about whether an investigation should be conducted and did in fact write on 19 December 2012 to indicate that they had nothing further to say at that stage. Nor does the fact that someone at the Practice had telephoned the Ombudsman’s office on 19 December 2012 and been told that the Ombudsman would not expect anything further from the Practice at this stage alter matters. If the Practice had considered that there were points to be made about why there should not be an investigation, they could have said so but did not. Furthermore, it has not been suggested that there were any representations that the Claimants would have made as to why an investigation into the complaint was not appropriate. In all the circumstances, therefore, the way in which the Ombudsman came to undertake the investigation did not involve any procedural fairness.

[73]Thirdly, it is said that the Ombudsman failed to provide the Claimants with the evidence upon which she relied at a formative stage of the process. This is essentially a challenge to the non-disclosure of the expert general practitioner and surgical advice provided to the Ombudsman. As discussed above, the process adopted by the Ombudsman included providing a draft report with provisional findings. That draft report set out in summary sufficient details of the provisional findings of fact and also of the clinical advice obtained. That draft report was, on the facts of this case, provided as part of the process of investigation and was the means chosen by the Ombudsman to enable the Claimants to comment upon, and respond to the allegations. Furthermore, fairness did not require the Ombudsman to provide copies of the expert reports obtained by her. It was sufficient to set out an adequate summary such as would enable the Claimants to be able to respond to the allegations. The draft report did that. In any event, the Claimants requested, and were provided with, copies of the expert evidence before responding to the draft report. In the circumstances, there was no unfairness. For completeness, this judgment is not intended to dissuade the Ombudsman from providing copies of expert reports. It is simply a recognition that, in the context of an investigative process of this nature, and given the issues that arose, the minimum requirements of fairness did not require provision of copies of the expert reports where the content of those reports was adequately summarised in the draft report.

[74]Fourthly, the Claimants contend that there was unfairness in that the Ombudsman did not provide the Claimants with copies of further evidence, comprising further expert evidence, comments from Mrs Pollard and the transcript of the out of hours call, and did not give them an opportunity to comment on those matters. That material was obtained by the Ombudsman following receipt of the submissions and evidence provided on behalf of the Claimants. In general terms, the Ombudsman is entitled to check points raised in the responses to the draft report and she is entitled to ask the experts whether the comments made, or evidence provided, alter their views. If the material obtained does not disclose any new issue, or it refers to matters upon which the Ombudsman does not propose to rely, procedural fairness does not require her to give a further opportunity to comment upon that material.

[75]Here the expert evidence consisted of a report from the original colorectal surgeon commenting on the likely progression of Mr Pollard’s condition in the light of the expert evidence produced by Dr Miller. In that regard, the surgeon remained of the same view. Ms Richards sought to suggest that there was a material difference in that the original advice referred to the abscess being perforated on 13 June 2012 whereas the later advice does not expressly say that. The advice, in fact, says that the surgeon remains of the view that he originally expressed and records the fact that Mr Pollard would have had a diverticular abscess on 13 June 2012 and that the process from that to death would require a matter of several days to develop. Significantly, he remained of the view that it is likely that Mr Pollard would have had sepsis on 15 June 2012 and that he would have had a number of symptoms on that day. That was the material issue so far as Dr Miller was concerned. That issue was clearly raised in the draft report (in paragraph 49) and amended in the final report to ensure that the reference was to having a diverticular abscess on 13 June 2015 (not a perforation) and sepsis on 15 June 201. The colorectal surgeon raised no new issue in that regard. So far as he expressed views on the care provided by Dr Howarth on 13 June 2012, the Ombudsman did not accept those views and did not need to put them to Dr Howarth for further comment. Another colorectal surgeon expressed a view on another matter not material to this claim. The general practitioner adviser was asked about the time scale within which antibiotics would take effect (it being said that they might not have done within a period of 24 to 48 hours so the advice of Dr Miller that the antibiotics needed to be given more time to work was correct). However, as the adviser said, the essential issue was the failure to conduct an adequate medical examination on 15 June 2012. Dr Miller had notice of that allegation and responded to it.

[76]So far as the other evidence is concerned, that related to the transcript of the out of hours call on 17 June 2012 which recorded that Mrs Pollard said in that telephone call that Mr Pollard’s condition had been steadily deteriorating since the 13 June 2012. The investigator did not have to put the record of the call to the Claimants for further comment. It was bound up with the likely condition of Mr Pollard on 15 June 2012, a matter upon which Dr Miller had the opportunity to comment. Similarly, Mrs Pollard was asked what she had said in her phone call with Dr Miller on 15 June 2012. Dr Miller, in her representations, had said that the call was to ask for advice about pain relief. Neither the clinical notes nor Mrs Pollard’s recollection supported that version of events. Again, the issue was referred to in the draft report (see paragraphs 14 to 16 of the draft report). The Ombudsman gave Dr Miller the opportunity to comment on what was said during the telephone consultation on 15 June 2012 and compared that with the account of Mrs Pollard and the medical notes. The Ombudsman was not required to give Dr Miller a further opportunity to comment. In short, all the new material related to matters already contained in the allegations and of which the Claimants were aware; none of the material raised new issues upon which the Ombudsman relied in reaching her final conclusions. There was no unfairness in the way the Ombudsman conducted this aspect of the investigation.

[77]The grounds of challenge initially contended that the failure to conduct an interview with the Claimants rendered the investigation unfair. Ms Richards confirmed at the hearing that that complaint had been abandoned. In any event, in my judgment, the fact that the Ombudsman did not interview either of the two Claimants did not amount to procedural unfairness. For these all these reasons, the second ground of challenge is not made out.

THE THIRD ISSUE - PRE-DETERMINATION

[78]The Claimants contend that the Ombudsman had pre-determined the outcome of the investigation in the present case. They rely upon a number of features which, they submit, indicated that a fair-minded and impartial observer would conclude that there was a real possibility that the Ombudsman had predetermined the outcome of the investigation.

[79]The precise scope of the principles governing pre-determination, and the extent to which it differs from the principles of bias, are not yet settled. For present purposes it is not necessary to explore those issues. It is sufficient to refer to the following paragraphs in the judgment of Jackson L.J. (with whom Stanley Burnton and Richards L.JJ. agreed) in Lanes Group plc v Galliford Try Infrastructure plc [2012] Bus. L. R. 1184: “45 Pre-determination is sometimes treated as a species of bias, though it is conceptually somewhat different. Pre-determination arises when a judge or other decision maker reaches a final conclusion before he or she is in possession of all the relevant evidence and arguments. “46 In practice findings of actual bias or actual pre-determination are rare, because of the difficulties of proof. Apparent bias or apparent pre-determination is a more common basis for attacking judicial or quasi-judicial decisions. “47 The leading authority in this area is Porter v Magill

[2002] 2 AC 357

. This is the House of Lords' decision arising out of the well known “Homes for Votes” saga in Westminster. Westminster City Council's auditor certified that certain councillors had caused approximately £31m loss to the council by their wilful misconduct. The House of Lords held that the auditor's decision was valid. Despite the fact that the auditor had issued a press statement announcing his provisional findings in the course of his investigations, the House of Lords dismissed allegations of bias or apparent bias against the auditor. In reaching this conclusion, the House of Lords modified the common law test for bias in the light of the Strasbourg jurisprudence on

article 6 of the Convention

for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998. At para 88, Lord Hope of Craighead noted that there was a close relationship between the concepts of independence and impartiality. He continued: “In both cases the concept requires not only that the tribunal must be truly independent and free from actual bias, proof of which is likely to be very difficult, but also that it must not appear in the objective sense to lack these essential qualities.” 48 Lord Hope formulated the test for apparent bias in these terms at para 103: “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” ….. “50 The test of the fair-minded observer is applied both in cases of apparent bias and in cases of apparent pre-determination. ….” “In both cases the concept requires not only that the tribunal must be truly independent and free from actual bias, proof of which is likely to be very difficult, but also that it must not appear in the objective sense to lack these essential qualities.” …..

[80]The Claimants contend that there are a number of factors which establish that there was an appearance of predetermination. First, they contend that the Ombudsman expressed views on the complaint at the outset. The factor primarily relied upon under this heading is the report prepared by the assessor. The report has to be read fairly as a whole and in context. Read as a whole, it is clear that it is reviewing the information provided at that date, and the assessor considered that there were “clear indications of failings” and was not satisfied with the response by the Practice. The assessor therefore considered there is a “benefit in accepting this case for investigation”. The decision of the Panel was to accept the case in principle, that is to accept that there was a case for investigation. Whilst the report could be better expressed, making it clear that it expressed the preliminary view of the assessor as to whether there was, in effect, a case to be investigated, no fair-minded observer, reading the report as a whole, would regard it as expressing the Ombudsman’s final view on the merits of the complaint. Furthermore, and additionally, the fair-minded observer would know of the steps taken by the Ombudsman after deciding to investigate which involved obtaining information, providing a draft report and provisional findings and giving an opportunity to those concerned to comment. That would reinforce the conclusion that no fair-minded observer would regard the report as giving rise to an appearance that the outcome of the investigation was predetermined.

[81]The second and third contentions relied upon are that the Ombudsman reached conclusions in her draft report and that the process adopted by the Ombudsman was unfair. This has been dealt with in substance above. There was nothing unfair in the Ombudsman proceeding either by offering an early opportunity to comment or, alternatively, by setting out provisional findings and provisional conclusions and recommendations and giving the Claimants the opportunity to respond. Furthermore, it is clear that the draft report was precisely that, a draft not a final report. The findings and conclusions were provisional. That is clear from the terms of the accompanying letter of 17 October 2013. It is also made clear in the draft report which states in paragraph one that it is a draft and sets out what is described as a provisional decision and provisional findings (see paragraph 5 of the draft report). A fair-minded observer, reading the draft report either alone or with the accompanying letter of 17 October 2013, would not consider that those documents gave the appearance that the Ombudsman had reached findings which were, in the words of the Claimant’s skeleton argument “firm and unequivocal”. Rather, the Ombudsman set out her provisional findings and conclusions and gave the Claimants the opportunity to comments, as she said would in her letters of 25 January 2013.

[82]Fourthly, the Claimants refer to part of a single sentence in a paragraph in a document setting out the practice of the Ombudsman which says that she “works on the basis that if it is not written down it did not happen”. The Claimants’ skeleton argument does not set out the remainder of the sentence which says “unless there is other corroborating evidence, e.g. referral letters”. The paragraph also refers to the Ombudsman following the thrust of a passage in a judgment indicating that if a professional person can only state what his normal practice was and that he would not have departed from it that can be given only limited weight if there are witnesses and documentary evidence showing that the practice was not followed. The paragraph does not establish an appearance of pre-determination.

[83]Furthermore, there is no real indication as to how it is that the Claimants say that that paragraph is applicable to the central finding in the Ombudsman’s report, namely that Dr Miller did not carry out an adequate examination of Dr Miller on 15 June 2012. The Ombudsman had Mrs Pollard’s account of the telephone consultation, together with the clinical notes which supported her account, and noted that there was no evidence to suggest that Dr Miller asked Mrs Pollard for more detailed information (nor did she speak to Mr Pollard). Any fair-minded observer would regard the conclusion as a sensible reflection of the evidence not an automatic application of part of a sentence in a document. There was also a finding that that the clinical notes made by Dr Howarth of the consultation on 13 June 2012 were so brief that it was unclear as to how unwell Mr Pollard was and took into account that there was no evidence his that temperature was taken or other observations made. Again, any fair-minded observer would regard that conclusion as based on all the material, including the absence of clinical notes, not an automatic or predetermined response to the absence of notes. There is also reference to the fact that there was no evidence of Dr Howarth giving advice about what to do if symptoms persisted or of Dr Miller giving Mrs Pollard advice as to what she should do if Mr Pollard’s condition did not improve or what a reasonable time frame for improvement was. Both Claimants said that it would have been part of their normal practice to give such advice but it would not be recorded. The view that the Ombudsman took of the fact that advice allegedly given was not recorded is a matter for her. She based her decision on the material available. No fair-minded observer would regard those references as evidence of an automatic application of part of the guidance and as giving rise to an appearance of pre-determination still less pre-determination of the central issue, namely whether there was a failure in the care provided on 15 June 2012 which that meant that Mr Pollard was not provided with a last opportunity to be provided with lifesaving care

[84]The factors relied upon do not, either individually or considered cumulatively, begin to establish an appearance of pre-determination of the issues that the Ombudsman considered as part of her investigation of the complaint. This ground of challenge is not established.

THE FOURTH ISSUE – THE STANDARD OF REVIEW

[85]The fourth issue concerns the standard of review applied by the Ombudsman in reaching her conclusions. The Claimants recognised that the High Court in Atwood v Health Service Commissioner

[2008] EWHC 2315

decided that the Ombudsman did not have to adopt the approach used by the courts to determine whether a case of medical negligence was made out (that is the Bolam test, derived from the decision in Bolam v Friern Hospital Management Committee

[1957] 1 WLR 382

at page 586, and approved in later cases, namely whether the doctor acted in accordance with a practice accepted as proper by a responsible body of his peers). However, they submit that the Ombudsman was required to articulate the standard applied and furthermore, the Ombudsman had publicly stated in 1995 that she would apply the Bolam test (as Attwood itself decided). Consequently, it is submitted, the Ombudsman here was also required to apply that test. Alternatively, the Claimants submitted that the High Court decision in Atwood was wrong and the Ombudsman was required to apply a test akin to the Bolam.

[86]First, the logical starting point is to consider whether the Act itself requires the Ombudsman to adopt any particular standard. Burnett J. in Attwood held that the Ombudsman was not obliged as a matter of statutory construction of the Act to apply a particular standard such as the Bolam test and said:

“26. The language of section 3(1) of the 1993 Act pre-dated the expansion of the role of the ombudsman to encompass complaints relating to matters exclusively of clinical judgment. It brings together five related concepts: (a) injustice; (b) hardship; (c) failure in a service; (d) failure to provide a service; and (e) maladministration. “27. None of these is defined. The purpose of the Health Service Commissioner (and the commissioners who have jurisdiction over complaints relating to 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 are 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.”

[87]Ms Richards, in her alternative submission invites this Court to find that the decision of Burnett J. in Attwood is wrong in this regard. A first instance judge will follow the decision of another first-instance judge unless convinced that the first judgment is wrong: see Police Authority for Huddersfield v Watson [1947] K.B. 842 at page 848. That approach ensures coherence and certainty in the legal system. I am not convinced that the decision in Attwood is wrong. Indeed, in my respectful judgment, the decision of Burnett J. is correct having regard to the provisions of the Act, and of section 3 in particular. Section 3(1A) of the Act deals with situations where there is said to be injustice or hardship arising in consequence of action taken in connection with the provision of specified services. That section is to be understood in the context of the general remit in section 3(1) of the Act. The Ombudsman is entitled to consider whether injustice or hardship has arisen from action amounting to maladministration, failure in the provision of a service or failure to provide a service. It is a matter for the Ombudsman to decide what standard she is applying. She is not obliged, as a matter of statutory construction, to adopt the Bolam test.

[88]Secondly, Ms Richards submits that, in any event, the Ombudsman made public statements in 1995 to the effect that the Ombudsman would apply a test in investigations involving questions of clinical judgement which is akin to the Bolam test. Consequently, it is submitted, the Ombudsman is required to apply the test that had been publicly articulated. That is the basis upon which is it said Burnett J. in Attwood held that the Ombudsman was required, in effect, to adopt a test akin to the Bolam test. Mr Maurici, for theOmbudsman, submits that Burnett J. in Attwood based his decision on the fact that the particular investigator in that case had adopted the Bolam test but then failed to follow it. In my judgment, Ms Richards is correct in her reading of the judgment in Attwood on this point. Burnett J. held that the Ombudsman had made a public statement as to the test that would be applied and it was a misdirection for the individual investigator in a particular case to apply a different test: see Attwood at paragraphs 33 to 35.

[89]The second submission advanced by the Ombudsman is that, in any event, she has subsequently clarified the approach that is to be applied, both generally, and in this particular case. It is clear from statements subsequently made that the Ombudsman does not adopt the Bolam approach in cases involving alleged service failure in areas involving the exercise of clinical judgment. In my judgment, that is correct. The Ombudsman set out the approach she currently adopts in a report entitled “Six Lives: the provision of public services to people with learning difficulties” presented to Parliament in 2009 pursuant section 14(4)(b) of the Act. That report indicates in section 2 the basis upon which the Ombudsman determines complaints. It indicates that the Ombudsman will establish the relevant facts, and establish a clear understanding of general standards of good administration and the specific standards governing the legal, policy and administrative framework and the professional standards relevant to the events in question. The Ombudsman then assesses whether what occurred constitutes a departure from those standards and if so, whether it falls so far short of the applicable standards as to constitute service failure.

[90]That was precisely the approach that the Ombudsman told the Claimants that she would adopt in the present case: see the letter of 25 January 2013 set out above. It is the approach described in the draft report and the final report. Those reports specifically identify the relevant professional standard as the GMC guidance and cites the relevant paragraphs. In those circumstances, the investigator in the present case did apply the approach, and the standards, identified by the Ombudsman. There was no misdirection on the part of the investigator. There was no unexplained departure from publicly available statements of the Ombudsman as to how such matters would be dealt with.

[91]Thirdly, the Claimants contend that it is not possible to determine from the Ombudsman’s reports or the advice of her clinical advisers what standard has been adopted. In my judgment, the standard adopted is clear. In the present case, the material guidance that the Ombudsman applied was the relevant paragraphs in the GMC guidance, which were summarised, in paragraph 72 of the report (set out in paragraph 40 above). The Ombudsman then applied that standard, having regard to the evidence and advice received.

[92]The principal issue, for present purposes, was whether each of the two Claimants had “adequately assessed [Mr Pollard’s] condition by taking a history, taking account of his symptoms, listening to what he said and carrying an examination and further investigation if necessary”. Dr Howarth had done so (although other aspects of his care did not meet other aspects of the guidance). Dr Miller had not for the reasons set out in paragraph 79 of the report. The standard applied, the reasoning and the conclusion reached are clear. The exercise involved a judgement by the Ombudsman. That is inherent in the exercise of deciding whether injustice has been suffered as a result of action taken in relation to matters involving clinical judgement. The Ombudsman had to assess whether the action taken did meet the requirements for making an adequate assessment. There is nothing unlawful in relation to the way in which the Ombudsman approached the exercise. This ground of challenge is not made out.

THE FIFTH ISSUE –AVAILABLE ALTERNATIVE REMEDY

[93]The Claimants also contend that the Ombudsman was precluded from investigating this complaint by reason of section 4 of the Act or failed to consider, or consider properly, the question of whether an investigation was barred by section 4(1) of the Act. In essence, the Claimants contend that Mrs Pollard had an alternative remedy available, namely a claim for damages for negligence in a court of law, or that the Ombudsman failed properly to consider that issue.

[94]At the assessment stage, in deciding whether to undertake an investigation, the assessment report noted that Mrs Pollard was seeking what are described as systemic change and a finding that Dr Howarth’s practice was incorrect. The source of that information is not clear. The complaint itself did not refer to any remedy sought by Mrs Pollard. The process is not explained by the Ombudsman in the witness statements lodged on her behalf. On the basis set out in the report, the assessor considered that an alternative remedy was not available as the remedies sought were not available through legal action. That view was agreed to by the person who counter-signed the report and was, impliedly, accepted by the Panel when it decided in principle to investigate the complaint.

[95]In any event, the investigator contacted Mrs Pollard by telephone on 14 January 2013. Mrs Pollard said that she was looking for an acknowledgment of failings, an apology and action taken to prevent a recurrence. She was asked if she was seeking any financial compensation if the complaint was upheld and she said that it would help. When confirming the scope of the investigation, the note of the relevant practice meeting records that the question of an available remedy was considered again. The notes record that Mrs Pollard was seeking confirmation that there were failings in the care provided and systemic change (which I take to be a reference to taking steps to avoid a recurrence of what had happened). The note refers to Mrs Pollard’s request for financial compensation. Mrs Pollard had not, in fact, requested financial compensation. When asked if she wanted such redress, she said it would help. It is not clear whether she meant that it would help as it would amount to a recognition of the wrong that she thought had been done to her husband, or meant something else. In any event, the Ombudsman considered that the results that Mrs Pollard was seeking, principally, a recognition of a failing in care and steps to avoid a recurrence, were not matters that were available through legal action and the investigation was not barred by section 4(1) of the Act. In my judgment, the Ombudsman was entitled to reach that conclusion.

[96]Ms Richards also referred to the fact that Mrs Pollard had told the Practice that she had consulted a solicitor and had a good case for negligence. First, that occurred before the complaint to the Ombudsman. Secondly, and viewed in context, Mrs Pollard was concerned at that stage that her husband should not have died and that the medical treatment was negligent. She is recorded as having said to the Practice that she wanted a full inquiry with medical facts. In her subsequent written complaint to the Practice she made it clear that her complaint was that if her husband had been correctly diagnosed and sent to hospital he might still be alive. The reference to seeing a solicitor and having a case for negligence has to be understood in the context of a person who was seeking an explanation for her husband’s death, not a person seeking to pursue a claim for damages for clinical negligence. In any event, in all the circumstances, the Ombudsman was entitled to conclude that an alternative remedy in form of a negligence action would not provide the outcome that Mrs Pollard was actually seeking. This ground of challenge is not made out.

THE SIXTH ISSUE – THE RECOMMENDATION FOR FINANCIAL REDRESS

[97]The grounds of claim, and the Claimants’ written skeleton argument, challenged the lawfulness of the recommendation that the Practice pay Mrs Pollard £15,000 in recognition of that the fact that, on the balance of probabilities, her husband’s death could have been avoided and in recognition of the distress caused to her. A number of the ways in which this challenge was put in the grounds and written skeleton argument were abandoned in oral argument. In particular, the Claimants abandoned the claim that, as a matter of statutory construction, the Act excluded recommendations for payment of financial compensation to remedy injustice. Rather, Ms Richards made it clear that were two ways in which this ground of challenge was advanced. First, it was said that it was wrong and unfair to recommend levels of financial redress equivalent to the level of damages appropriate in civil claims where the Ombudsman did not provide the safeguards available in civil actions and where the Ombudsman did not adopt measurable standards for determining liability. Ms Richards submitted that these considerations bolstered her arguments that fairness required disclosure of documents amongst other features and that there was a need for measurable standard such as the Bolam test in deciding whether the actions of a doctor should lead to finding of injustice and a recommendation of payment of financial compensation. Secondly, Ms Richards submitted orally that if the process and approach adopted by the Ombudsman in this case were lawful, then it would be outside the powers of the Ombudsman to make a recommendation for payment of financial compensation by reference to the level of damages payable in claims for negligence.

[98]First, the Act itself does not specify the nature of any recommendations that the Ombudsman may make. The Act recognises that the Ombudsman will prepare a report setting out the results of her investigations: see section 14 of the Act. That may include findings of injustice or hardship (as those are matters within her remit: see section 3(1) and 3(1A) of the Act). Further, the Ombudsman may make a special report to Parliament if she considers that the person aggrieved has sustained injustice or hardship which has not been or will not be remedied: see section 14(3) of the Act. It is implicit, in my judgment, that the Ombudsman is entitled to form a view as to what action is necessary to remedy the injustice found. If the appropriate action is the payment of money as financial redress, it is implicit in the Act that the Ombudsman may recommend that. If the person concerned does not then make that payment, the Ombudsman will know that the injustice has not and will not be remedied and so a special report may be made. The power to recommend the making of financial redress is not unlimited. The purpose of any recommendation is to remedy the injustice caused by the action found to be a service failure or maladministration. The making of a recommendation for financial redress, and the amount, must be reasonably and rationally related to the loss caused by the injustice.

[99]Secondly, for the reasons given above, the procedures for investigation used by the Ombudsman in this case and the standards applied to determine if there had been injustice were lawful. The injustice suffered was the fact that, on the balance of probabilities, Mr Pollard would not have died if there had not been a failure in the treatment provided on 15 June 2012. The Ombudsman was entitled to recommend a payment of financial compensation calculated to reflect the loss resulting from that injustice. The approach adopted by the Ombudsman to calculating the amount is not unfair and is not unlawful, even though the methods of calculating the loss may be similar to those used in civil actions for negligence. There is no basis for concluding that the recommendation in the present case was unlawful. This ground of challenge is not established.

ANCILLARY MATTERS

[100]For completeness, I note that the two Claimants and the Defendant have relied upon a number of documents. Further, a large number of legal arguments were made by counsel for all parties in their skeleton arguments and oral submissions. I have sought in this judgment to deal with what I consider to be the principal points raised and the principal evidence relating to those matters. The two Claimants, and the Defendant, can be assured however, that I have carefully considered all the points made and all the documents relied upon.

CONCLUSION

[101]The Ombudsman did not act unlawfully in investigating whether there had been an injustice, arising from the death of the complainant’s husband as a result of the actions of either Dr Howarth and Dr Miller. She was entitled to interpret the complaint as one of injustice arising out of the death of Mr Pollard in circumstances which were avoidable and as extending to the actions of both doctors. The procedure adopted in the present case to investigate that complaint satisfied the requirements of section 11 of the Act and the common law requirements of procedural fairness. No fair-minded observer could conclude on the facts that there was an appearance that the Ombudsman had pre-determined the outcome of the investigation. The Ombudsman was not obliged to adopt the Bolam standard in determining if an injustice had occurred as a result of service failure in areas involving questions of clinical judgement. The Ombudsman acted in accordance with the approach identified by her generally and in this particular case. The standards used to measure the adequacy of the actions of the Claimants were standards that the Ombudsman was entitled to use and were sufficiently clearly defined. The Ombudsman was not precluded by section 4(1) of the Act from undertaking an investigation. The Ombudsman has a power to recommend the payment of money as financial redress in order to remedy injustice if the making of such redress is reasonably and rationally related to the injustice found to have occurred. For those reasons, this claim for judicial review is dismissed.

Cited in 1 later judgment

Miller & Anor v The Health Service Commissioner for England 2018