UKAJI is publishing a series of blog posts about the Court of Appeal decision in Miller v Health Service Commissioner  EWCA Civ 144 (February 2018), which identified a number of failures in the investigation by the Health Service Ombudsman for England. The first post, by Richard Kirkham, considered what the judgment tells us about judicial approaches to ombuds’ decision-making. In this second post, Nick O’Brien and Mary Seneviratne explore the possibility that Miller opens the door to a more fruitful reimagining of the ombud institution, one that preserves its integrity as a distinctive form of response to public grievance.
By Nick O’Brien and Mary Seneviratne
In our recent book, Ombudsmen at the Crossroads (Palgrave Macmillan 2017), we argued that there is an inherent tension between the roles of the ombud as agent of democratic accountability and as a form of consumer dispute resolution: too intensive immersion in the latter role increases the risk of what Carol Harlow described as long ago as 1978 as ‘degeneration’ into the function of a small claims court and thereby impoverishment of the ombud’s institutional potential.
Our particular interest in Ombudsmen at the Crossroads was in the Legal Services Ombudsman for England and Wales (LSO) – the predecessor between 1991 and 2010 of the current Legal Ombudsman. We concluded that the LSO had in fact been ill-equipped to make fine judgments about the quality of service provided by legal practitioners. Instead, its most striking successes lay in its institutional and systemic recommendations which were directed at the Law Society and Bar Council themselves. This institutional focus, we concluded, is that most appropriate to an ombud more generally and that it is best suited to discharge effectively.
The recent Court of Appeal judgment in the case of Miller v Health Service Commissioner serves to highlight the contradictions that follow when an ombud strays from that institutional and systemic focus and instead becomes primarily a vehicle of individual dispute resolution, not least in respect of the quality of professional services.
‘The tables turned’: from protection of the individual to professional liability
Most striking of those contradictions is the fact that an ombud institution, originally conceived in the late 1950s and early 1960s as a form of protection for the ‘small man’ (sic) from the encroachment of the State, now finds itself in the role of a state-funded and centralised bureaucracy whose job includes evaluating the professional judgment and services of individual General Practitioners, in reality individual citizens who happen to have NHS contracts. In other words, the tables have been turned to the extent that the ombud emerges not so much as protector of the private citizen but as the adjudicator of disputes between two or more private citizens. Moreover, in these cases, criticisms of professional or clinical judgment can have serious consequences for the individuals concerned.
‘…the tables have been turned to the extent that the ombud emerges not so much as protector of the private citizen but as the adjudicator of disputes between two or more private citizens’.
It is perhaps curious to note now that the 1961 publication Occasion for Ombudsman, supporting the ombud idea (admittedly written from the somewhat extreme libertarian position of the Society for Individual Freedom), included amongst its ammunition four case studies drawn from the NHS: one concerned a GP who found himself on the wrong side of the Medical Practices Committee, failed to secure from the Minister of Health a compensatory payment for ‘the vagaries of his servants’ and instead emigrated to Australia in the hope of leading ‘a happy and prosperous life unmolested by public servants’; another concerned the Matron of a maternity hospital who was involved in a ‘series of collisions’ with the hospital management committee before eventually being dismissed as a result of what would now be called an incident of ‘whistleblowing’ about the ‘lamentable’ conditions in the hospital; the third was the result of ‘perennial conflict between doctors and administrators of the Health Service’, or more specifically between the medical staff committee of a mental hospital in Lanarkshire and the hospital management board; and the fourth concerned a consultant gynaecologist who, as the result of a ‘monstrous injustice’, was dismissed by the Manchester Regional Board.
There is something rather quaint about these ‘cases’ that originate from the early years of the NHS. The disciplinary, employment and professional standards aspects of medical regulation have since changed beyond recognition. There is nevertheless a salutary dimension too: in 1961 it seemed obvious that the focus of the ombud in the health sector would not be judgment of professional practice but of institutional administration: ‘in a conflict between the medical and administrative elements in the [National Health] Service, the administrators hold the overwhelming advantage’.
Tort triumphant: systemic remedy or small claims court?
Had a similar ethos survived into the 21st century, the HSO might in the case of Miller have found itself asking searching questions about the institutional features and structures that currently shape medical practice and thereby constrain the quality of service and clinical judgement on offer (and the ability of practitioners to comply with GMC guidelines), rather than second-guess ‘quality’ in an individual case. That act of second-guessing was in any event far from straightforward: the internal GP adviser at HSO took a fairly sanguine view of what had happened; it was the second, adverse, opinion of a specialist surgeon which clinched it.
In Miller, the primary complaint was interpreted by HSO as one of ‘inadequate care’ (‘service failure and/or maladministration’, in the terms of the Act), but implicit too is the suggestion that just one ‘short examination’ at home led to misdiagnosis, as well as lack of direct communication between the two GPs concerned and reluctance to visit a second time or seek early admission to hospital as a precaution with a patient who was aged 76 and in acute pain. It is noteworthy too that at the outset of the complaint to the HSO the complainant was making it clear that she was seeking ‘systemic’ remedy: in the event, the HSO recommended, at the conclusion of a report that reads as though broadly based on the sort of reasoning expected of a finding in tort, ‘an open and honest acknowledgement of the identified failings and an apology’, plus the payment of £15,000 to the widow ‘in recognition of the distress she had been caused’. There is no suggestion that this was a case of ‘systems failure’.
In the case of the HSO, that process by which the original aspiration of institutional focus has ‘degenerated’ into one of a small claims procedure has been prefaced by distinct legislative stages: first, at the time of its creation in 1973, with the extension of the customary ‘maladministration’ remit to cover service deficit also; and then in 1993, with the further extension of that service-deficit remit to cover those aspects that include ‘clinical judgment’ on the part of practitioners.
‘By legislative mandate the HSO had indeed become a small claims court, but without the features that might ensure credibility in a common law context.’
In this way, the institutional focus of the ombud institution suffered, even at the hands of legislative enactment, precisely the ‘degeneration’ that Carol Harlow had warned against. By legislative mandate the HSO had indeed become a small claims court, but without the features that might ensure credibility in a common law context: no clear norms against which to judge professional performance; no tried and tested rules of evidence; no explicit process for disclosure of evidence; no expectation of oral hearing; no power to enforce findings or recommendations; and (as made relevant in the recent Northern Ireland Ombudsman case of JR 55), no explicit power even to recommend financial remedy.
In other words, the HSO has learned to live over the years with the inherent contradiction that, although made to look and sound and feel like a small claims court with a remit grounded in the principles of the law of tort, it in fact lacks (quite rightly, as an ombud) the apparatus that might enable it to discharge such a function according to the expectations created by the common law courts. Given these problems, one could question whether the HSO should have the power to investigate ‘clinical judgment’ at all.
Shaping expectations: the lure of ‘legal liberalism’ and the common law mentality
The recent comparative work of Naomi Creutzfeldt (e.g. Trusting the middle-man: impact and legitimacy of ombudsmen in Europe (2016), and ‘A voice for change? Trust relationships between ombudsmen, individuals and public service providers, Journal of Social Welfare and Family Law 38 (2016) 460) in respect of the UK, Germany and France demonstrates the importance of that mismatch for the all-important generation of ‘trust’. Her findings suggest that the most significant determinant of expectations in any form of an alternative system of justice like the ombud will be the characteristics already dominant in the national court system. In other words, common law adversarial court systems make it very difficult for citizens (let alone practitioners) to envisage an alternative that does not share a similar ethos and process. An adversarial court process, and all who engage with it, invariably judges an inquisitorial ombud institution as very much second-best, a deviation from the gold standard of adjudication, a pale imitation of the real thing.
‘An adversarial court process, and all who engage with it, invariably judges an inquisitorial ombud institution as very much second-best’.
Not surprising then that, when given half a chance, the courts are tempted to impose their own expectations on the ombud institution. Where they have in the past resisted the temptation to do so, it is perhaps because the ombud has set out its own stall effectively, offering some sense of how a form of response to public grievance might legitimately, and within the bounds of its own integrity as an alternative system, achieve a measure of fairness, albeit manifest in forms and process different from that prevailing in the common law courts. In the case of Miller such was the deviation from judicial expectation and so pronounced the apparent failure to have acted in accordance with an alternative but credible process that the entire edifice of routine ombud practice came tumbling down. A serious re-think must surely follow as a matter of urgency.
In our book, we argued that any such re-think entails the establishment of clear philosophical foundations. It is not just national judicial systems which determine expectation but a more pervasive form of legal liberalism that privileges individualism, ‘command and control’ regulation, professional control of information, binary opposition between (typically) just two parties, and a form of one-off adjudication whose paradigm is the trial in open court. We proposed, however, that an alternative form of practice, consistent with liberal principles but distinct from ‘legal liberalism’, lies at hand in that form of jurisprudence, much-discussed in the US, known as ‘legal pragmatism’.
Legal pragmatism, by contrast, privileges public benefit, reflexive or responsive regulation, inquisitorial process, deliberative and dialogic decision-making, and an iterative approach that is more open-ended, less amenable to ‘closure’, than the more familiar and dominant form of legal liberalism. The advantage of legal pragmatism is that it represents a coherent body of thought, distinct from the common law mentality yet expressive of its own systemic ‘integrity’, which sits more easily with the traditional ombud ethos and is more compatible with its legitimate ambitions.
As things stand, the contradictions exposed, but far from exhausted, by a case like Miller threaten to drive the ombud further down the route of consumer dispute resolution and conformity to the expectations of the common law adversarial system. A journey of that sort entails the impoverishment of the ombud’s distinctive form of response to public grievance, of its ability to maintain systemic integrity whilst delivering significant public benefit and impact.
Picking up the pieces: legal pragmatism and a more ‘deliberative’ future
The tragedy of Grenfell Tower, and the administrative justice failings of the quasi-judicial response to it, demonstrates the urgency of need for something different, some form of ‘demosprudence’ that is capable of engaging democratic deliberation on fundamental social rights issues. The ombud waits in the wings, yet its democratic potential is clipped by its gradual absorption into the common law mentality. If it looks like a small claims court, tries to behave like a small claims court, and talks like a small claims court, then you can be forgiven for thinking that that’s exactly what it is. The decision in Miller makes it that little bit more difficult to envisage an alternative future.
Let’s return, however, to the detail of the decision. For all is not lost. In essence, the Court of Appeal found that the GPs in question had not been given enough opportunity to understand the case against them and the quality of evidence supporting the adverse findings. In particular, the issuing of a draft report should not entail that those under scrutiny merely have one last chance to rebut the findings against them but rather provide an opportunity for them to engage more fundamentally with the issues. Against that overarching context, the Court of Appeal also accepted that the HSO should not be expected to behave identically to a common law court: a claim in professional negligence is a quite different matter from a complaint to an ombud and the more appropriate avenue for complainants who wish to establish tortious liability and recover damages.
The findings of the Court of Appeal were, nonetheless, no doubt delivered in the understanding that the ombud is ‘just an alternative’ to the courts rather than a radically different and ‘just alternative’, whose integrity may entail a very different mentality and determination of fair process. Those findings are not, however, inconsistent with a different vision and a more fundamental re-imagining.
‘The sort of safeguards imposed by the Court of Appeal might in fact be read therefore as just the start of a reimagined role for the ombud that engages the parties fully and transparently in open dialogue’.
In Ombudsmen at the Crossroads, we argued for a more deliberative, open-ended and conversational process, compatible with the jurisprudence (and indeed ‘demosprudence’) of legal pragmatism. Although the Court of Appeal’s remonstration with the HSO seeks to make it merely compliant with the sort of disclosure that would meet adversarial and common law expectations, it might also serve as a stepping-stone to something more dialogic and deliberative. If an ombud is indeed to partake of the ethos of deliberative democracy it is of course necessary that all stakeholders in that process know what the issues are, how the evidence plays out, and how they can participate in a decision-making process in which the ombud is above all facilitator, with limited scope for ‘enforcement’ or ‘command and control’ closure. The sort of safeguards imposed by the Court of Appeal might in fact be read therefore as just the start of a reimagined role for the ombud that engages the parties fully and transparently in open dialogue from the start and leads via shared deliberation to future institutional reform rather than merely individual censure and consolatory redress.
There is in other words now, as from time to time previously, scope for HSO, and indeed the ombud community more generally, especially in the public sector, to take the initiative, propose a positive vision of legitimate difference from the courts when it comes to process, and thereby preserve the distinctive integrity of the ombud institution, notwithstanding the obstacles placed in its way by a legislative remit that, at least with hindsight, looks like a wrong turning. Back at the crossroads, the Court of Appeal might then be seen to have put in place a helpful ‘Road Ahead Closed’ sign and to have made it possible to jettison the Sat Nav in favour of a less predictable but more human route-finder. Not everyone will welcome such an initiative: not just legal practitioners but those who have used the ombud in the past and purport to represent other users will, if Naomi Creutzfeldt is right, find it hard to jettison expectations shaped by a common law mentality. If the argument in Ombudsmen at the Crossroads has merit, there is in fact an even more fundamental battle of ideas to be waged, but one that might just in its resolution yield a more viable and progressive ombud institution than that currently on offer.
About the authors:
Dr Nick O’Brien is Honorary Research Fellow at Liverpool University; Mary Seneviratne is Emeritus Professor at Nottingham Trent University