An application by JR55 for Judicial Review (Northern Ireland)
| Jurisdiction | Northern Ireland |
| Judge | Lord Sumption,Lord Neuberger,Lord Clarke,Lord Carnwath,Lord Toulson |
| Judgment Date | 11 May 2016 |
| Neutral Citation | [2016] UKSC 22 |
| Court | Supreme Court |
| Date | 11 May 2016 |
[2016] UKSC 22
Lord Neuberger, President
Lord Clarke
Lord Sumption
Lord Carnwath
Lord Toulson
Appellant
Tony McGleenan QC Philip McAteer BL (Instructed by Browne Jacobson LLP)
Respondent
David A Scoffield QC Gerard Boyle (Instructed by Carson McDowell Solicitors)
(with whom Lord Neuberger, Lord Clarke, Lord CarnwathandLord Toulsonagree)
The Parliamentary Commissioner Act 1967 created for the first time in the United Kingdom an officer, the Parliamentary Commissioner for Administration, charged with investigating complaints of maladministration against government departments and a limited number of other public authorities exercising the functions of the Crown or controlled or funded by the Crown. Since then, ombudsmen have come to fulfil an increasingly important role in mediating between the state and the public service on the one hand and the citizen on the other. Commissioners have been established for complaints against the National Health Service since 1973, for complaints against local government since 1974 and for complaints against social housing landlords since 1996. There are also separate Commissioners charged with examining complaints against public bodies or the providers of public services in Scotland, Wales and Northern Ireland. There are currently 19 statutory officers charged with the handling of complaints against government departments, local government, the National Health Service and other public authorities or undertakers. They are generally known as ombudsmen, after the officer of that title first established in Sweden in 1809. In some cases, the same person performs the functions of more than one ombudsman, but each role has its own statutory basis. The various enactments have a strong family resemblance. But some of them have distinctive features which mean that considerable caution is required before principles derived from one legislative scheme can be read across to another.
In 1969, two ombudsmen were established for Northern Ireland. The Parliamentary Commissioner Act (Northern Ireland) 1969 established a Northern Ireland Parliamentary Commissioner for Administration (later known as the Assembly Ombudsman for Northern Ireland). His role and powers were closely modelled on those of the Commissioner established by the United Kingdom Act of 1967. The Commissioner for Complaints Act (Northern Ireland) 1969 established a Northern Ireland Commissioner for Complaints. I shall call him the "Complaints Commissioner". He is charged with reporting on complaints against bodies which were not within the jurisdiction of the Northern Ireland Parliamentary Commissioner, notably local authorities, the Northern Ireland Health Board and various public statutory undertakers. Since 1972, the same person has held both offices. But until recently (see below) his two roles have had distinct legislative foundations. It is therefore necessary to have regard to the particular capacity in which an ombudsman is acting and the particular legislation governing that function in order to determine what his powers are. The current legislation comprises two Orders in Council made on the same day in 1996, which repealed and replaced the corresponding Acts of 1969. They are the Ombudsman (Northern Ireland) Order 1996 (SI 1996/1298 (NI 8)), governing the work of the Assembly Ombudsman, and the Commissioner for Complaints (Northern Ireland) Order 1996 (SI 1996/1297 (NI 7)), governing that of the Complaints Commissioner.
This appeal is about the powers of the Complaints Commissioner under the latter order, which I shall call "the 1996 Order". In particular it is about his powers in relation to general medical practitioners working in the National Health Service. In Northern Ireland, as in other parts of the United Kingdom, the National Health Service is one of the main sources of complaints. The original jurisdiction of the Complaints Commissioner extended to the various boards and committees responsible for the administration of the National Health Service in Northern Ireland. But it was confined to maladministration and did not extend to any "action in the discharge of a professional duty by a medical or dental practitioner, pharmacist, nurse, midwife or member of a profession supplementary to medicine in the course of diagnosis, treatment or care of a particular patient": see the Commissioner for Complaints Act (Northern Ireland) 1969, Schedule 2, paragraph 4. That jurisdiction was preserved in the 1996 Order. But the position was significantly altered by an amendment of 1997, which followed a similar amendment to the United Kingdom legislation. Its effect was to extend the Complaints Commissioner's jurisdiction to "the merits of a decision to the extent that it was taken in consequence of the exercise of clinical judgment": see article 8(7) of the 1996 Order as amended.
The main questions at issue in this appeal are whether, and if so in what circumstances, the Complaints Commissioner has power to recommend the payment of a money sum to a complainant; and whether in the event that that sum is not paid he has power to make a special report drawing the attention of the legislature to that fact. The Northern Ireland Court of Appeal decided that the answer in each case was No.
These questions will shortly become moot. The Public Services Ombudsman Act (Northern Ireland) 2016 abolishes the offices of both the Assembly Ombudsman for Northern Ireland and the Complaints Commissioner with effect from 1 April 2016, and combines their functions in a new officer, the Northern Ireland Public Services Ombudsman. The jurisdiction and powers of the new office are in some respects greater than those of either of its predecessors, and his mode of operation different. But the new Act has no bearing on the present appeal. The transitional provisions provide for current matters to be transferred to the Public Services Ombudsman, but to be dealt with by him in accordance with the 1996 legislation. We have been told that there are some 53 reports completed since the decision of the Court of Appeal which have been held back pending the determination of this appeal, and that in four further cases payment of a money sum has been recommended but the recommendation has not been followed.
The respondent is a general medical practitioner in sole practice in Northern Ireland. The National Health Service operates in Northern Ireland through a Health and Social Care Board. The respondent provides general medical services under contract with the board for his area under Part VI of the Health and Social Services (Northern Ireland) Order 1972 ( SI 1972/1265 (NI 14)). This means that complaints against him are liable to be investigated by the Commissioner under article 8 of the 1996 Order. I shall deal below with the scope of that article.
The complainant is the widow of one of his patients, who has been referred to in this litigation as "R". R died on 6 January 2009 of a myocardial infarction. The complaint concerns the care and treatment received by him during the last eight months of his life. He attended the respondent's surgery on 30 May 2008 to ask for a heart screen. Although he had no symptoms and was not complaining of chest pains, he was referred to a NHS hospital for a treadmill test. The test was carried out in July, but terminated early due to fatigue. The test recorded "negative for ischaemic heart disease" at the level of exercise attained at the time it was terminated. A report to this effect was sent to the respondent, whose staff recorded it on the practice computer system, but no action was taken.
On 10 December 2008, R attended the surgery again, this time complaining of chest pains. He was seen by a locum doctor, who noted "typical angina pain but normal treadmill earlier in the year", but again, no action was taken. R returned to the surgery on 15 December 2008 complaining of further chest pains. He saw the respondent, who referred him to the Rapid Access Chest Pain Clinic at the same hospital. The clinic, however, declined to give him an appointment, because the earlier treadmill test had been negative. They suggested in a report dated 20 December that if any further medical review was required R should be referred to the outpatients department. Their report arrived at the practice on Christmas Eve, and was input into the practice computer system. The respondent was on holiday. The locum was on duty, but she did not review the report because it was not marked urgent. R returned to the surgery on 6 January 2009 to find out what had happened about the referral to the clinic. The locum told him that an appointment had been refused, but referred him to the clinic as an outpatient for a treadmill test, as suggested in the report. He died later that day, before anything had been done to follow up this suggestion.
Mrs R complained to the Complaints Commissioner. She gave his officials to understand that she was not looking for compensation but wished to understand what had happened. The Commissioner agreed to undertake the investigation, and in due course reported. He concluded that the practice had failed to provide a reasonable level of care and treatment. In particular, he found that it was guilty of maladministration in (i) failing to take action after the treadmill test, (ii) failing to follow up promptly the clinic's failure to give R an appointment, and (iii) failing to refer R to the emergency services on 6 January 2009. He also found that the respondent had acted inappropriately after R's death in (iv) prematurely assigning responsibility to the hospital, (v) discouraging the family from making a complaint, and (vi)...
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