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Courts, Health, Judicial review, Ombuds and reviewers

A legal threat to ombuds’ practice

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By Gavin McBurnie

On the 7th and 8th November, the Court of Appeal heard an appeal by two GPs against the findings and recommendations of the Parliamentary and Health Services Ombudsman (PHSO) (Miller & Howarth v PHSO). This post examines the potential implications of the case and refers back to the recent UK Supreme Court decision in JR55.

The Supreme Court’s ruling on JR55

This appeal follows on from the Supreme Court ruling in May 2016 in JR55,[i] a case brought by a General Medical Practitioner (GMP) against the then Northern Ireland Commissioner for Complaints (‘the Commissioner’). The Commissioner had investigated the clinical care provided by the GMP and had found that there had been service failure. The Commissioner proposed a consolatory payment of £10,000. When the GMP refused to make the payment, the Commissioner stated his intention of laying a report before the Northern Ireland Assembly highlighting the non-compliance. The Supreme Court, in JR55, issued a judgment in favour of the GMP that held that:

  • the Commissioner had no power to make a recommendation of financial compensation;
  • the figure arrived at by the Commissioner was irrational; and
  • non-compliance was not a ground on which the Commissioner was entitled to lay a report before the Northern Ireland Assembly.

In a post on this judgment, on this website, Kirkham and Thompson (2016)[ii] raised several concerns with this judgment, namely that:

  • the Supreme Court showed a lack of ‘deference’ to the Commissioner when it scrutinised the justification of his recommendations;
  • either ombuds schemes should avoid financial recommendations, or, where one may be available, any interest in such a remedy should lead to its pursuit through the courts and not through an ombudsman investigation; and,
  • the Supreme Court chose to interpret the legislation in a manner that limited the discretionary powers of ombuds; and they concluded,

‘There has always been a residuary concern that the courts would  … frown upon the ombudsman model and interpret its remit contrary to the manner in which it has evolved, and, … contrary to the manner in which the legislature has been content for it to operate.’

Despite these academic criticisms, there must be concern, given the terms of the JR55 judgment, that this approach will influence the current appeal against the PHSO.

Judicial review of the PHSO: the current appeal

This appeal[iii] concerned a complaint centred on the misdiagnosis of, and subsequent treatment provided to, the complainant’s husband, who subsequently died. The finding of the PHSO was that there had been service failure by the Medical Practice which led to the patient’s avoidable death. As part of the PHSO’s recommendations a consolatory payment of £15,000 was suggested.

Following the production of the final report by the PHSO, the practice sought judicial review of the PHSO on six grounds (para 52). Three particular issues arise from these grounds:

  1. the potential existence of an alternative legal remedy;
  2. the use of the Bolam test in the investigation of clinical complaints; and,
  3. the attempted judicialisation of the ombuds’ investigative process.

The potential existence of an alternative remedy

For Dunleavy et al (2010, p.421), when a member of the public seeks redress for a failing resulting from the action or inaction of a public body, they are seeking an apology, corrective action (at both the individual and systemic level), and a remedy (when the failing can be rectified) or reparation (when the failing cannot be rectified).[iv] The authors identify that while a complainant will have a ‘joined up view’ of the redress system, the reality is that, instead, they will face a fragmented system, which, the authors suggest [probably tongue in cheek], requires a PhD to successfully navigate (ibid. p.422). The authors conclude by setting out proposals to reorganise the public-sector redress arena while noting that such proposals are likely to be fiercely opposed by the redress sector itself. It appears that this opposition is being played out in this appeal as the plaintiffs seek to separate out financial redress from the other forms of redress sought by complainants.

In the Administrative Court, the plaintiffs argued that the complainant had an alternative legal remedy available – that of a claim for damages for negligence. Lewis J rejected this argument and noted that the complainant was seeking an apology and explanation of what had happened to her husband as well as a potential financial remedy.[v] A negligence claim would not provide all of these outcomes (para 96). The benefit of ombuds schemes, as Lewis J appreciated, is their ability to look at matters in the round, including those of remedy. Forcing ombuds to separate out an investigation that may result in an apology, an explanation and action to prevent recurrence from a claim for a small level of financial remedy is not in the interests of justice or a coherent redress system.

If the plaintiffs are successful in this appeal, then the system will become more fragmented to the detriment of those who have suffered injustice.

The standard used for determining clinical complaints

The second ground of challenge which is of concern is the standard to be used by ombuds in the determination of clinical complaints. In the case at hand, the plaintiffs are arguing that the Bolam test for identifying clinical negligence should apply. The Bolam test is that a doctor is not guilty of negligence if he or she ‘has acted in accordance with a practice accepted as proper by a responsible body of medical men [sic] skilled in that particular art’.[vi] However, the PHSO investigates against a standard of established good practice as it is attempting to determine whether there has been service failure and not whether clinical negligence has occurred.

While Bolam may have been appropriate in 1957, when evidence-based practice as we understand it today did not exist, to argue that it should be the standard now is unjustifiable. Clinical practice and knowledge have changed beyond recognition and for decades there has been a drive, led by doctors themselves, to base clinical decisions upon clinical evidence. The Bolam test is a quest for the lowest common denominator and has no place in the investigation of complaints, which, instead, should be focused on learning from any errors that are identified, negligent or otherwise. In any event, it is worthy of note that in the USA the courts are moving away from the Frye ‘general acceptance test’, which is similar to Bolam, to the more rigorous Daubert Standard,[vii] which is more in line with the approach adopted by the PHSO.

It would be particularly worrying if this ground of appeal is upheld by the court. Not only would it indicate a conflation of negligence claims with clinical complaints, but it would render most ombuds’ investigations potentially meaningless, especially as the government has made clear its intention that ombuds’ findings should not be binding (Cabinet Office, 2015, p.18).[viii]  The reality will be that, in a significant number of cases, health bodies, subject to complaints, will be able to obtain a clinical opinion sufficient to meet the Bolam test requirements. This, together with an ability to reject ombuds’ findings, means that the likelihood of health ombuds being able to remedy an injustice arising from clinical service failure will be significantly reduced.

Judicialisation of the ombuds process

The third ground of concern is the attempt to judicialise the ombuds process. In this case, the plaintiffs argue that the PHSO failed to sufficiently disclose the evidence used in reaching its decision, arguing that this amounted to a breach of procedural fairness (para 61).

Parliament has provided the PHSO with a wide discretion to conduct its investigation as it, the PHSO, sees fit in the circumstances.[ix] In an obiter comment in Miller and Howarth, Lewis J states that ‘The essential requirement … 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” (para 63). How the ombuds discharges that requirement is for them to determine. Lewis J, in rejecting this head of claim, accepted that the PHSO’s approach had complied with the principles of procedural fairness. He found that the plaintiffs had been given the material they required to make informed comments and challenges to the draft report of the investigation, and that the PHSO had complied with requests for other documents (para 77).

Although an appeal under the guise of procedural fairness, this is, in fact, an attempt to transfer greater control of the process to the clinicians being investigated. The PHSO adopts an inquisitorial approach which, to a significant degree, levels the power imbalance between lay individuals and clinicians, who are likely to be supported by wealthy defence organisations or the resources of NHS Trusts. If this appeal is successful, the resulting approach will inevitably become more adversarial and re-tilt the balance of power back in favour of clinicians and NHS Trusts, which have the ability to muster legal support and, if needed, representation.

Conclusion

This hearing at the Court of Appeal is of importance to ombuds’ practitioners. If the plaintiffs were to win, then the PHSO would become a considerably weaker body with significant limits on its ability to remedy injustice. This, in itself, would call into question its justification for existence. Together with JR55, the other British ombuds could expect to find themselves subject to similar legal challenges.

This potentially portends a perilous future for the ombuds community. One of the historic strengths of the ombuds system internationally has been its ability to develop to meet changing circumstances, a flexibility afforded by generally permissive legislation. Rather than uphold the complaint, the need is to correct the error, identified by Kirkham and Thompson (2016), of the failure of the Supreme Court to recognise the distinctive contribution of the ombuds to administrative justice and its resulting failure to develop the law in a way that supports ombuds’ ability to deliver this contribution effectively.

About the author:

Gavin McBurnie is a PhD student and lecturer in dispute resolution at Queen Margaret University. He previously worked at the PHSO.

 

[i] JR55, 2016, http://www.bailii.org/uk/cases/UKSC/2016/22.html

[ii] Kirkham, R and Thompson, B. (2016), ‘The implications of JR55 for administrative justice’ [online] [Viewed 21 February 2017]. Available from https://ukaji.org/2016/06/13/the-implications-of-jr55-for-administrative-justice/

[iii] The PHSO has not published the case and details concerning it have been obtained from the judgment made in the High Court.

[iv] Dunleavy, P., Bastow, S., Tinkler, J., Glodchluk, S. and Towers, E. (2010), ‘Joining Up Citizen Redress in UK Central Government’, in Adler, M. ed., Administrative Justice in Context, Oxford: Hart Publishing, pp. 421-456.

[v] Miller and Howarth v The Parliamentary and Health Service Ombudsman, [2015] EWHC 2981 (Admin).

[vi] Bolam v Friern Hospital Committee [1957] 1 WLR 382 p586-7.

[vii] Daubert v. Merrell Dow Pharmaceuticals, Inc.  509 U.S. 579 (1993).

[viii] Cabinet Office (2015), A Public Service Ombudsman: Government Response to Consultation [online] [Viewed 22 December 2016]. Available from

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/486797/PSO_-_Consultation_Response_-_Final.pdf

[ix] Health Service Commissioners Act 1993 S. 11(3).

 

Discussion

5 thoughts on “A legal threat to ombuds’ practice

  1. In the real world the PHSO do little to correct injustice and are complicit in covering up bad practice.

    Posted by D.Brooke | November 21, 2017, 2:10 pm
  2. I read with interest ‘A legal threat to ombuds’ practice’ by Gavin McBurnie, published on 15 November 2017. https://ukaji.org/2017/11/15/a-legal-threat-to-ombuds-practice/

    In this article McBurnie gives the impression that the Parliamentary and Health Service Ombudsman (PHSO) is currently doing an effective job of providing appropriate redress for the citizen. He argues that a successful legal challenge presently at appeal stage could damage this process, putting victims of injustice at risk. As an ex-employee of PHSO, McBurnie has first-hand knowledge of the figures and will know that PHSO investigates only a fraction of the complaints which are presented each year. In 2016/17 there were 22,965 complaints concerning the NHS but only 3,767 were passed to the investigation team (16.4%). The uphold rate, from which remedy is triggered, is appallingly low. From a total of 31,444 complaints only 1,531 were upheld to any extent (4.8%) with 801 payments made as a result of uphold. (2.5% chance of a compensation payment) [1] The threat to those who have suffered injustice will not be significantly aggravated by court decisions given that currently 95% of the public who submit a complaint to PHSO will receive no redress whatsoever.

    McBurnie fails to acknowledge that finding ‘maladministration’ is in itself a flawed model for complex clinical investigations. Health Ombudsman staff have no clinical or legal expertise, yet they are expected to determine contradictions in specialist clinical evidence provided by NHS legal teams and evaluate cases where often medical records are either ‘lost’ or inaccurate. Indeed even for parliamentary cases finding maladministration is nonsense when policies and procedures are redefined as mere guidelines meaning that indisputable breaches do not lead to maladministration uphold.

    McBurnie criticizes the ‘Bolam test’ suggesting that; “in a significant number of cases, health bodies, subject to complaints, will be able to obtain a clinical opinion sufficient to meet the Bolam test requirements.” [2] I.e. that actions of the clinician were considered reasonable by other clinicians in the field, without a hint that he knows this is exactly the model used by PHSO who pay an anonymous clinical adviser who has links to the NHS and could well be known to the clinician under investigation, to determine that the actions carried out were ‘appropriate’ in the circumstances. This determination cannot be challenged by the complainant even when they have alternative clinical opinion which supports their claim.

    McBurnie suggests that should the current appeal from a Medical Practice be successful then, “… the resulting approach will inevitably become more adversarial and re-tilt the balance of power back in favour of clinicians and NHS Trusts, which have the ability to muster legal support and, if needed, representation.” This balance of power is already firmly established and used to the disadvantage of the complainant. When unhappy with the scope of proposed PHSO investigations public bodies are able to threaten legal action if the investigation goes ahead while the complainant is not able to do likewise, inevitably causing the Ombudsman to err on the side of caution when undertaking a risk assessment. How often this happens is anyone’s guess since PHSO refuse to release data on this subject. [3]

    McBurnie concludes; “If the plaintiffs were to win, then the PHSO would become a considerably weaker body with significant limits on its ability to remedy injustice. This, in itself, would call into question its justification for existence.” Surely, the appallingly low uphold rate of a mere 5% year on year calls into question the justification for the existence of PHSO. Parliament set up this body to monitor and hold to account the actions of parliament. There is the nub of the problem. It has been provided with total discretion to act as ‘it sees fit’ yet no powers of compliance. It is a toothless watchdog failing the public at every turn and costing £37 million in taxpayer fees. In contrast to McBurnie’s suggestion, legal challenge would not serve to weaken the Ombudsman but to strengthen it, particularly if it were easier for members of the public to do so, for lack of accountability encourages complacency and impunity, so aptly described by Bruce Newsome in Conservative Home (August 2017) “Unaccountable systems are riskier systems. Most practitioners are probably caring and ethical, but good intentions can be over-ridden by natural, everyday contradictions as simple as distraction. When practitioners are not held to account, they become less mindful and honest.” [4]

    It is nigh on impossible to take successful legal action against PHSO under the current judicial review arrangements. Between 2010 and 2015 PHSO received 70 pre-action protocol letters yet only 2 were allowed permission to go to JR hearing and both were dismissed (this includes the current case under appeal). [5] [6] The police will not investigate matters concerning PHSO for criminal charges citing legal restrictions.

    “The legislation … states that no officer of the PHSO can be called upon to give evidence in any proceedings … of matters coming to their knowledge in the course of their investigation. Therefore MPS could not obtain any witness evidence from officers of the PHSO in relation to your allegations. In conclusion, because of the provision of the Parliamentary Commissioner Act 1967, the MPS is unable to conduct any criminal investigation into allegations of misconduct in public office by the PHSO.”
    DI Gail Granville SET, July 2016

    This body is legally water-tight making it unaccountable and effectively above the law. The only purpose the Ombudsman serves is to provide an illusion of accountability for the actions of public bodies, it was deliberately set up this way by parliament and current proposals from the Cabinet Office confirm that PHSO is to exist in an advisory capacity only. [7] That is the real scandal here and it is time that McBurnie and others turned their attention to the suffering and harm caused by a deliberately ineffective and unaccountable ombuds’ service.

    Della Reynolds
    Coordinator
    Phso-thefacts.com

    [1] https://www.ombudsman.org.uk/sites/default/files/PHSO_Annual_report%20and%20accounts_2016-17.pdf p8 & p11

    [2] https://ukaji.org/2017/11/15/a-legal-threat-to-ombuds-practice/

    [3] https://www.whatdotheyknow.com/request/public_body_right_to_challenge_t#incoming-532440

    [4] https://www.conservativehome.com/platform/2017/08/bruce-newsome-the-key-problem-with-the-nhs-not-resources-not-culture-but-a-lack-of-accountability.html

    [5] https://www.whatdotheyknow.com/request/297360/response/745950/attach/3/Pre%20action%20letters%20received%20from%20October%202010%20to%20October%202015.pdf?cookie_passthrough=1

    [6] https://www.whatdotheyknow.com/request/297360/response/745950/attach/4/Pre%20action%20letters%20which%20have%20proceeded%20to%20JR.pdf?cookie_passthrough=1

    [7] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/486797/PSO_-_Consultation_Response_-_Final.pdf

    Posted by phsothefacts.com | November 21, 2017, 2:09 pm
  3. The founder of the PHSO Pressure Group aIerted me to this as Dr Gavin McBurnie was assigned to review the failure of the PHSO to best resolve my complaint about my being prevented from working or accessing any healthcare or Council Tax Services based on factually correct data.

    I am upset and confused by the former Head of Complex Health Investigations article. What is Dr Gavin McBurnie saying here? Is he saying that the Ombudsman’s position is at risk of litigation from NHS employees?

    Really?

    My timeline of correspondence with the PHSO suggests a different perspective on McBurnie’s report; my experience of the PHSO and the legislation that surrounds it, suggests that the Ombudsman sees itself as “untouchable” under UK law.

    In his 2014 report (received by me on Christmas Eve) Dr Gavin McBurnie ignored the following facts.

    March 2009 –
    my GP blocks my request to view/ check the data in my medical records.

    April 2009 –
    I am referred to The Mental Health Services and a room full of NHS employers and social worked and the first question I am asked is about ” you two children in care” and my drug and alcohal intake. I respond that I have no children and if I had been given access to my records, I could verify that I suffered a miscarriage.

    Dec 2010 –
    by now, I am distressed by the fact that I have failed to progress any of my complaints since 2009. One NHS whistleblower provides me with a copy of the GP’s 2009 referral letter and confirms that this false profile has been shared with the police, Council Tax Services etc..

    2011 –
    I ask the ICO, IPCC and the PHSO for help, but they all send me back to my GP and NHS services who still refuse to progress my complaint, instead, they tried to section me, but refuse to clarify why I was being sectioned.

    2012 –
    The Mental Health Services agree to a Resolution Meeting and promised me a copy of the notes taken and the tape recording. My GP is allowed not to engage in the Resolution meeting. The NHS Complaints Manager writes up a false account of the meeting, strikes me off their client list and withholds a copy of the recording and the notes.

    2013 –
    When the PHSO finally provides a report, the report acknowledged the GP’s 2009 referral letter and “indications of maladministration” but failed to clarify which of the many misconducts the Ombudsman acknowledged as misconduct or negligence.

    2014 –
    I attend a Westminster Briefing about what the NHS has learnt from The Francis Report. The PHSO, NHS Complaints Managers, CQC and POWhER were on the panel, but seemed to provide no clarity on what had been learnt.

    2014 –
    the PHSO Pressure Group manage to force an historical review of certain cases, of which one was mine.

    10.40AM 24th October 2014 –
    Dr Gavin McBurnie gets in touch with me, in order to review my complaints against the PHSO. I quote ” I wish to talk about your complaint – specifically what you believe that the PHSO has got wrong and what you would like us to do about it”

    December 2014 –
    Well, I received his 4 page report on Christmas Eve. (Thanks for that McBurnie)

    McBurnie’s 4 page report managed to side-line from responding to any of my bullet point questions or from acknowledging the 2009 referral letter from the GP; I struggled to maintain good mental hygiene over Christmas.

    In 2015,
    my then lawyer complained to my GP that he had ignored her previous Subject Access Request to be copied into my medical notes in order that I might progress civil action against the NHS employees on my street who had harassed me with heckles of “go back to Manchester, we don’t want you Northern wh*r*s down here”. On the day my GP releases a copy of my files, I am informed by SERCO that my GP will striking me off his Patient’s List.

    I beg SERCO not to allow this act of malfeasance against me, providing SERCO with a copy of the GP’s 2009 referral letter. I explained to SERCO that i had just finished a gruelling 4 year , weekly correspondence with the PHSO and that I had still not resolved the impact of 6 years of false data having been progressed against me.

    Once my GP struck me off, my lawyer dropped my case after viewing my medical notes.

    I AM FORCED INTO BEING A PERSON IN LITIGATION

    By July 2015, in an effort to best resolve the false data, I am forced into being a Person In Litigation against SERCO and The Mental Health Services, NSFT.

    On 16th October 2015, the NHS and SERCO lawyers all provide a factually incorrect but identical Witness Statements in their defence; I quote, “it appears that the Claimant will say that the letter containing false information had been produced by the surgery”. The Judge throws out the NHS case but allows me to progress with the one against SERCO.

    23rd December 2015 – I stand in Court One at Norwich County Court, holding a copy of my GP’s March 2009 referral letter in my hand.

    March 2016 – the Judge fails to acknowledge that he and other HMCTS staff had been provided with a copy of the 2009 referral letter. I am told to pay SERCO’s court fees and am given an injunction without any explanation as to why I am blocked from challenging SERCO’s or the NSFT perjury.

    Since 20th October 2016, Dr Gavin McBurnie has ignored my requests for a mediation meeting and he and others suddenly evacuate the PHSO.

    This year, the Ombudsman’s lawyer, Helen Holmes informed me that it would be impossible for me to challenge the ombudsman in court due to the Parliamentary Ombudsman Act.

    The letters that I have received from her dated 17th July 2017 imply that she is right and without access to the healthcare that I have sought since 2007, I struggle to cope.

    My report will not be as classy as Dr McBurnie’s, but many thanks for making the effort to read how the PHSO had the power to hold Doctors, NHS staff and a GP Surgery to account, but repeatedly failed to do so.

    Posted by Fiona Watts (@MagnaCarta300) | November 21, 2017, 12:54 am
  4. First off, the author should have recused himself from writing this article at all, since he used to work at the plaintiff as an effective defence counsel.

    Substantively, the article is a legalistic fan dance: pretending to oppose judicial curbs on ombuds’ power to remedy injustice, while actually opposing any options to appeal against the injustices wrought by the ombuds.

    Implicitly, the author is still protecting the PHSO (Parliamentary & Health Services Ombudsman) in particular from its years of easy-riding, free from accountability, while avoiding its statutory obligations to investigate public complaints against healthcare (the rate of PHSO investigations in the most recently reported year ran at 3% of all complaints received).

    The problem is not jurisprudence but lack of political accountability – the PHSO is after all a public institution, but pretends to be independent, and uses that as justification to avoid the law. Legal accountability does not follow without political accountability. For a good primer on the problem, see: https://www.conservativehome.com/platform/2017/08/bruce-newsome-the-key-problem-with-the-nhs-not-resources-not-culture-but-a-lack-of-accountability.html

    Posted by Bruce Oliver Newsome, Ph.D. | November 20, 2017, 9:15 pm

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