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 the 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. In this third post, Gavin McBurnie considers whether the approach the Court took to the ombud’s standard in assessing clinical service failure deferred to the medical establishment.
By Gavin McBurnie
The Court of Appeal recently passed judgment in Miller and Howarth v PHSO. This blog considers the approach of the Court of Appeal and questions whether the approach adopted in the judgment was an example of the courts deferring to the medical establishment. Its starting point is Kirkham’s argument that the medical establishment ‘has been a key player in persuading the judiciary to push the boundaries of their powers in order to impose tighter procedural obligations on the [ombud’s] office’.
The blog focuses specifically on the approach adopted by the Court of Appeal when it considered the standard used by the PHSO in determining service failure. The Court held that the approach adopted by the PHSO in this case was irrational and therefore unlawful. For clarity, in this blog it is the overall approach adopted by the Court that is being considered and it is not a review of the specific actions of the general practitioners involved in the case.
The test used by the PHSO in determining clinical service failure is ‘established good practice’. The PHSO’s starting point in identifying established good practice is to identify any relevant, applicable clinical guideline that it is reasonable to expect a doctor to be both aware of and to follow. This is in keeping with the General Medical Council’s guidance document Good Medical Practice, which states, in para 11, that a doctor must be familiar with guidelines and developments that affect their work and, in para 16b, that a doctor must provide effective treatment based on the best available evidence. Note the use of the word ‘must’ rather than ‘should’.
The guidelines used by the ombud are those produced by NICE or the clinician’s own professional societies. It is entirely reasonable to expect a clinician to be aware of these guidelines and, where possible, to follow them. The production of these guidelines takes account of the differences across national and clinical boundaries and the available evidence, which is often international in nature and which is graded according to robustness. They are the result of lengthy development and consultation processes. They reflect established good practice, not perfection. They represent the clinical judgement of a reasonable body of equivalent medical practitioners.
Of course, it is not always possible for a clinician to follow precisely a clinical guideline. Resource issues or factors to do with the patient such as co-morbidities or personal preference may prevent a clinician from doing so. In such circumstances, not following the guideline is entirely reasonable. However, it is the responsibility of the clinician to explain their rationale for not following an established guideline. The ombud will consider these explanations as to why a clinical guideline was not followed in any individual case and reflect on that. Thus, nuance is possible even where there is established good practice which the clinician does not follow.
By using accepted clinical guidelines as the yardstick, the ombud is providing clarity and consistency that is normative but is also able to flex to specific situations. The standard is clear and should be known to practitioners.
However, the court was clearly not supportive, asserting in its judgment:
‘The standard chosen by the ombudsman is beguilingly simple but incoherent. It cannot provide clarity or consistency of application to the facts of different cases. There is no yardstick of reasonable or responsible practice but rather a counsel of perfection that can be arbitrary. It runs the risk of being a lottery dependent on the professional opinion of the advisor that is chosen. It is unreasonable and irrational and accordingly, unlawful.’ (para 82)
The Bolam test
The court’s preference in the judgment appears to be the Bolam test, which is ironic, as this is a test that is beguilingly simple yet incoherent. The Bolam test is the standard used in clinical negligence claims and is that ‘the clinical judgment of a doctor complained of would be compared against a reasonable body of equivalent medical practitioners’. In essence, if a medical practitioner can demonstrate that a reasonable body of medical opinion agrees with their practice, then they are not negligent.
McNair J set out the Bolam test in Bolam v Friern Hospital Management Committee in 1957. The test was immediately controversial, with Montrose arguing that negligence should centre on what should be done, not what is done in comparable situations, and that it was for the courts to determine if the standard of care was reasonable. Thus, from the start, its comparative rather than normative approach was criticised. However, this view was not persuasive to the courts; in Maynard v West Midlands Regional Health Authority, the House of Lords held that where expert opinions differed, courts should refrain from choosing between them, with Lord Scarman claiming that ‘the law imposes the duty of care; but the standard of care is a matter for medical judgment’. Thus, the courts took the view that it was not for them to determine whether the care delivered was of a reasonable standard.
The problem is that the Bolam test is a lottery, dependent upon the availability of financial resource and who can afford the best hired guns. The yardstick becomes what you can persuade your colleagues to defend and represents the lowest common denominator. Rarely is that in the interest of the individual; usually it is in the interest of the medical establishment.
For example, Lord Denning stated ‘A charge of medical negligence was serious … It affected his professional status and reputation’. The implication in his view was that a doctor’s reputation had to be protected. Meanwhile, Mustill LJ in Wilsher contrasted the financial motives behind a claim for negligence with his view of the selflessness of the clinical professionals, concluding that ‘has not the law taken a wrong turn if an action of this kind is to succeed?’
It is suggested that this was also the view of the Court of Appeal in Miller, as paragraph 46 of the judgment states ‘… the context within which fairness is to be judged [includes] … the fact that serious criticism of the of the appellants’ [that is, doctors’] professional practice might ruin their reputation, professional standing and ability to earn a livelihood’. A decision on the appropriateness of a clinician’s actions should be judged solely on its own merits and should not consider the potential impact of that decision on the professional.
This judgment has all the hallmarks of a policy decision that seeks to constrain the ombud in how they can determine service failure in health cases. Ironically, it seeks to encourage the use of the court standard, the Bolam test, which is no longer fit for purpose even in medical negligence cases. It represents yet further deference by courts to the medical establishment and should be challenged.
About the author:
Gavin McBurnie is a PhD student and lecturer in dispute resolution at Queen Margaret University. He previously worked at the PHSO.
 Miller & Another v The Health Service Commissioner for England  EWCA Civ 144
 Kirkham, R., 2018, Safeguarding procedural fairness or imposing excessive legalism? [online] [viewed 28 March 2018] Available from https://ukaji.org/2018/03/05/safeguarding-procedural-fairness-or-imposing-excessive-legalism/
 PHSO, 2009, Principles of Good Administration, [online] [viewed 5 April 2018] Available from https://www.ombudsman.org.uk/about-us/our-principles/principles-good-administration p.4
 General Medical Council, 2013, Good Medical Practice, [online] [viewed 5 April 2018) Available from https://www.gmc-uk.org/guidance/good_medical_practice.asp
  EWCA Civ 144 para 78
 Montrose, J.L., 1958, Is Clinical Negligence an Ethical or Sociological Concept? 21 Modern Law Review,p.260
 Sidaway v Bethlem Royal Hospital and the Maudsley Hospital  AC 871 at 881
 Hucks v Cole (1968) 118 New Law Journal 469
 Wilsher v Essex Area Health Authority  2 All E.R., 801, 810