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:
- the potential existence of an alternative legal remedy;
- the use of the Bolam test in the investigation of clinical complaints; and,
- 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.
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.
[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,  EWHC 2981 (Admin).
[vi] Bolam v Friern Hospital Committee  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
[ix] Health Service Commissioners Act 1993 S. 11(3).