Parliamentary and Health Service Ombudsman loses in Court of Appeal

The Court of Appeal has overturned an earlier decision of the PHSO in which two appellant GPs were found to have provided unacceptable care to a patient, Mr Pollard.

Background 

In 2012 Mr Pollard was visited at home by the first GP and prescribed antibiotics for abdominal pain and an inability to pass urine. Failing to improve two days later, Mr Pollard’s wife telephoned the surgery and spoke to the second GP, who advised to allow more time for the antibiotics to take effect. A further two days after this, Mr Pollard sadly died from a burst colonic abscess and undiagnosed peritonitis.

Mrs Pollard subsequently complained to the PHSO about the care provided to her husband.

PHSO investigation 

The PHSO investigated the complaint but did not disclose the nature of the complaint until the draft report was provided to the GPs. The GPs responded to the draft report, outlining that they disputed the medical opinion of a surgeon, which had been relied upon.

The final report upheld the initial findings in support of the complaint, recommending that apologies and compensation were to be offered to Mrs Pollard.

The GPs complained that the PHSO repeatedly failed to disclose the details of the complaint, thereby preventing them from understanding the nature of the complaint against them, or enabling them to put forward explanations for what had occurred.

Original judicial review claim

In 2015, the two GPs brought a judicial review against the PHSO challenging the report on six grounds, including the PHSO’s ability to recommend financial redress and the procedural unfairness of the investigation process.

The Administrative Court disagreed with the GPs on that occasion.

Decision of the Court of Appeal

The two GPs appealed against the refusal to allow judicial review.

On 15 February 2018 the Court of Appeal reconsidered the same six issues and ultimately quashed the PHSO’s decision to investigate the complaint against the GPs on the ground that the decision making process was procedurally unfair and therefore unlawful.

The PHSO’s file was reviewed and it gave “every appearance of pre-determination and almost none of a fair handed approach. From the outset the actions of the doctors were assessed and reported upon as if they were ‘guilty as charged’.”

Section 11(1A) of the Health Service Commissioners Act 1993 provides that the PHSO must give the person complained of the opportunity to respond to the complaint, before deciding whether to conduct the investigation. Individuals must therefore be given details, in sufficient clarity, to enable them to properly respond.

The court did say that there was no procedural requirement that appellants be provided with all the evidence. However, they did state that it is good practice to disclose the complaint itself and where additional evidence had been obtained from experts, that evidence should also be disclosed. With regard to disclosure of the complaint, this included the complaint letter and the record of a conversation that enlarged upon it. This was because the court said that the words used by a complainant and the style of the complaint can speak volumes.

The Court of Appeal condemned the approach that had clearly been adopted by the PHSO that “if it’s not written down it didn’t happen” and noted that this promoted “defensive notetaking by doctors rather than clinical good practice”.

The court said that it was important to look for corroborating contemporaneous notes and also for evidence of good recording and safeguarding practices but that it was also important to listen to what a professional says.

Additionally, it was determined that for the PHSO to select a colorectal surgeon to provide an opinion about GP practice was inappropriate: “It runs the risk of being a lottery dependant on the professional opinion of the advisor that is chosen. It is unreasonable and irrational and accordingly, unlawful.”

The court also confirmed that although the presence of an alternative legal remedy does not preclude the PHSO from investigating a complaint, the PHSO must still obtain information about possible alternative remedies to enable them to consider whether they may be appropriate. This includes whether the complaint is motivated by financial remedy and whether it is possible to pursue the complaint via another legal route.

You can read the full judgement: Miller & Another v The Health Service Commissioner for England.

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