Court of Appeal highlights the limits of Ombudsmens' discretion

In Miller & Another v Health Service Commissioner for England [2018] EWCA Civ 144, the Court of Appeal quashed a decision of the Parliamentary and Health Service Ombudsman (the "Ombudsman") on the basis that both the decision to investigate and the approach taken during the investigation were unlawful.

Key Points

• Whilst ombudsmen have the discretion to determine the standard against which they investigate public bodies, this standard must be clear and capable of consistent application.
• Where there is a requirement to consider alternative legal remedies, public bodies must properly assess these in light of the particular circumstances.
• Where statute obliges a public body to comply with a different standard than that required by common law principles of procedural fairness, the public body will ultimately be assessed against the more stringent criteria.
• Where a public body does not display a balanced approach, its decision may be rendered unlawful on the basis of pre-determination.

Background

The Ombudsman is the statutory body responsible for considering complaints that the National Health Service has not acted properly or has provided a poor service. It draws its powers in relation to healthcare almost wholly from the Health Service Commissioners Act 1993 (the "Act"), which affords it wide discretion to investigate cases brought by individuals regarding services received from health care providers.

Mrs Pollard made such a complaint to the Ombudsman in respect of two medical practitioners who provided care to her late husband. She suggested that, had the practitioners properly diagnosed Mr Pollard's disease, he would not have passed away. The Ombudsman investigated this claim and upheld her complaint, finding that Mr Pollard's death would have been avoided had he received appropriate care from the two individuals.

The medical practitioners applied for judicial review of the Ombudsman's decision. The application was dismissed at first instance.

Judgment

The medical practitioners appealed the High Court's dismissal. The Court of Appeal allowed the appeal and quashed the decision of the Ombudsman. In finding for the practitioners, the Court of Appeal considered both the Ombudsman's decision to investigate and the manner in which it conducted that investigation.

Decision to Investigate

The Court of Appeal found that the decision to investigate was unlawful on the grounds that it was procedurally unfair and that the Ombudsman had not properly considered alternative legal remedies in accordance with its statutory obligations.

Before commencing an investigation, section 4 of the Act requires the Ombudsman to determine that the complainant has no reasonable alternative legal remedy. The Court of Appeal found that the Ombudsman had assumed a purported decision in respect of Mrs Pollard's alternative remedies from the outset, rather than reaching a conclusion which was based on the particular circumstances of the case. The lack of such factual assessment rendered unlawful the decision to investigate.

The Court further held that the Ombudsman's decision to investigate was procedurally unfair as the medical practitioners were not afforded the prior opportunity to comment required by the Act. Separately, the Court assessed the Ombudsman's procedure against standards of good adjudicative practice and found it to be lacking. The Ombudsman had not, for example, disclosed the initial complaint to the medical practitioners, or indeed any evidence which was contrary to its own conclusion. The Court nonetheless noted that such standards were desirable rather than obligatory for ombudsmen. Emphasising the distinction between litigious and inquisitorial avenues, it stated that it was "important that this court does not import into the informal, non-judicial process of administrative and complaints and adjudicators like the ombudsman the procedures of courts and tribunals" and, further, that the procedural approach was "entirely within the gift of the ombudsman provided that her decision making process is lawful, rational and reasonable".

Standard of Review

The Court of Appeal determined the standard of review that the Ombudsman applied in the investigation to be unlawful. Whilst it affirmed the High Court's position that the Ombudsman did not have to accord with any particular or prescribed standard of review, the Court highlighted that the one which is selected must still be reasonable and rational. To meet these criteria, such standards must be "clear and capable of being consistently applied". The Court ultimately found that the Ombudsman's "incoherent" review of the medical practitioners' activities was too arbitrary to meet that threshold. It required simply that the Ombudsman choose one medical opinion and measure the practitioners against it, without allowing for the inevitable divergence of views within professional practice.

Pre-determination

The Court of Appeal found that the Ombudsman's decision was sufficiently biased by pre-determination so as to render it unlawful. The contents of the Ombudsman's file did not display a balanced approach, and there was insufficient attempt to consider both the practitioners' own rebuttals and expert opinions in their favour. Additionally, the Ombudsman's draft report did not account for its provisional nature and instead presented its preliminary findings as conclusive.

Comment

This case illustrates the court's approach to ombudsmen (albeit that each ombudsman will have different rules under their own particular legislation) and the degree of discretion which is afforded to these bodies. Whilst the judgment consistently highlights the inquisitorial role of ombudsmen and the flexibility that these bodies should enjoy, the decision ultimately places limits on this and offered further criticisms of what was considered a failure to follow good practice. This is of particular relevance to those industries where ombudsmen tend to take an active role – this case may provide comfort that there are certain principles that ombudsmen must follow when conducting these investigations.

The case similarly places restrictions on the methods by which ombudsmen arrive at their conclusions. The finding of pre-determination, which is usually a high threshold in public law, highlights the requirement on ombudsmen to properly display impartiality and an open mind at all stages of an investigation.

Although the case relates to ombudsmen, similar principles can be applied to other public bodies where there is a more informal complaints/review procedure, and those finding themselves in that situation should bear in mind the comments on procedural best practice and pre-determination.

Andrew Lidbetter Partner +44 20 7466 2066 Email	Nusrat Zar Partner +44 20 7466 2465 Email	Jasveer Randhawa Of Counsel +44 20 7466 2998 Email