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Health, Judicial review, Ombuds and reviewers

Analysis: How wide is a public authority’s discretion when interpreting non-policy documents?

Jamie_Potter_Web_Profile_Nov14Following a one-day hearing, Mr Justice Jay handed down an ex tempore judgment on 2 December 2014 in R (on the application of Morris) v Health Services Commissioner, finding in favour of the Defendant, more commonly known as the Parliamentary and Health Services Ombudsman (the “Ombudsman”). The case concerned the relatively narrow legal issue as to the width of the Ombudsman’s discretion when considering non-policy documents, and, in particular, the claimant’s complaint. Written judgment has yet to be provided and this blog post is therefore necessarily short, but further analysis will follow.

As acknowledged by the Court and all parties, the factual circumstances that gave rise to the challenge were unquestionably tragic. Mrs Morris’s daughter Alexis died of a urinary tract infection on 12 July 2011 after more than five years as an inpatient at St Thomas’ Hospital, having been diagnosed with bowel cancer in 2005.

Less than a month after her death, Mrs Morris requested Alexis’s medical records from Guys’ and St Thomas’ NHS Foundation Trust (the “Trust”). The Trust were unable to provide a full set of those records, and have never produced significant records relating to oncology, chemotherapy and pharmacy amongst other aspects of Alexis’s treatment, without proper explanation for the loss of those documents.

In May 2012, Mrs Morris complained to the Ombudsman about the Trust’s conduct. The Ombudsman said that although the loss of the records was “unreasonable”, she would not be able to find them and therefore saw no purpose in investigating Mrs Morris’s complaint.

Mrs Morris challenged the Ombudsman’s refusal to investigate in June 2013 on the basis that her complaint had sought not only her daughter’s records (which was, of course, her primary concern), but also an explanation for why such records could not be found and an investigation into systemic issues regarding the Trust’s record-keeping, both of which could potentially be achieved by the Ombudsman. After being refused on the papers, the challenge received permission to proceed at an oral hearing in March 2014.

In the meantime, the Trust found some of the missing records, which led to a further investigation by the Trust between May and September 2014 and a further complaint to the Ombudsman by Mrs Morris on 1 October 2014. The Ombudsman agreed to investigate, but refused to expedite her own procedures in order to confirm the scope of her investigation, despite the fact that could have resolved matters, prior to the hearing.

The Claimant had argued that, just as would the case for commercial contracts and indeed Government policy documents, the Claimant’s complaint had a single meaning, which was to be determined by the Court taking into account all of the relevant evidence. The Ombudsman’s interpretation of the complaint would be largely irrelevant in such an analysis, just as a Government department cannot dictate the meaning of its own policies.

Mr Justice Jay, however, preferred the Ombudsman’s argument that her interpretation was to be analysed according to the traditional Wednesbury test of reasonableness, with a particularly low level of scrutiny in the case of the Ombudsman in line with previous case law. Indeed, he suggested that it was necessary for the Claimant to establish that her claimed interpretation was the only reasonable interpretation in the circumstances.

The Ombudsman’s interpretation had, however, been a reasonable one in Wednesbury sense in the view of Jay J. The written judgment will be necessary to analyse the judge’s reasoning further in this respect. However, from a practical perspective, it is worth noting that the judge expressed “considerable sympathy” for Mrs Morris on the basis that she had been given the “metaphorical run around” by the Trust, which had “not covered itself in glory”. Accordingly, Jay J urged the Ombudsman to investigate Mrs Morris “fresh complaint in full and in accordance with the Claimant’s wishes.” He would not, however, comment on the Ombudsman’s refusal to confirm the scope of the new investigation before the hearing, which could have avoided significant time and costs, as it was not a matter before him.

Despite the result of the proceedings, it can only be hoped that Mrs Morris now obtains the investigation she has been fighting for over the past two and half years.

Jamie Potter is an Associate at Bindmans LLP. He acted as solicitor for the claimant in these proceedings.

About UK Administrative Justice Institute

Funded by the Nuffield Foundation, we link research, practice & policy on administrative justice in the UK

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