Miller & Another v The Health Service Commissioner for England
| Jurisdiction | England & Wales |
| Judge | Lady Justice Gloster,Lord Justice David Richards,Sir Ernest Ryder |
| Judgment Date | 15 February 2018 |
| Neutral Citation | [2018] EWCA Civ 144 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2015/3686 |
| Date | 15 February 2018 |
[2018] EWCA Civ 144
Lady Justice Gloster
Vice-President of the Court of Appeal, Civil Division
SENIOR PRESIDENT OF TRIBUNALS
and
Lord Justice David Richards
Case No: C1/2015/3686
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
Lewis J
CO/5288/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Jenni Richards QC (instructed by Weightmans LLP) for the Appellants
Mr James Maurici QC and Mr Luke Wilcox (instructed by Browne Jacobson LLP) for the Respondent
Hearing date: 8 November 2017
Sir Ernest Ryder, Senior President:
This is an appeal against the order of Lewis J made on 22 October 2015 in the Administrative Court dismissing a claim for judicial review. The appellants who are registered medical practitioners had applied for judicial review of a decision of the Health Service Commissioner for England [the ombudsman]. The ombudsman had made a decision upholding a complaint made in June 2012 by Mrs Pollard about the medical treatment provided to her late husband, Mr Pollard, and found that his subsequent death would have been avoided had he received appropriate care in June 2012.
There is a detailed summary of the facts in the judgment of Lewis J which is reported at [2015] EWHC 2981 (Admin) which I gratefully adopt. In the following paragraphs I identify only those facts that are necessary to understand the issues in this appeal.
The appellants are GPs. At the material time they both worked at a practice in Chichester [the practice].
On 13 June 2012 Mrs Pollard contacted the practice requesting a home visit for Mr Pollard who had been unwell and complaining of abdominal pain and being unable to pass urine. Dr Howarth attended the home of Mr and Mrs Pollard, carried out an examination of Mr Pollard, diagnosed a urinary tract infection and prescribed antibiotics.
On 15 June 2012 Mrs Pollard contacted the practice and spoke to Dr Miller, because her husband's condition had not improved despite him taking the prescribed course of antibiotics. Dr Miller advised Mrs Pollard to continue with the course of antibiotics as they had not had enough time to take effect.
Mr Pollard's condition continued to deteriorate and on 17 June 2012 he sadly died as a result of a burst colonic abscess secondary to undiagnosed diverticular disease.
The appeal to this court concerns the procedural fairness and lawfulness of the decisions of the ombudsman in her investigation and determination of Mrs Pollard's complaints against the doctors.
The complaint:
On 3 August 2012 Mrs Pollard made a complaint to the practice and at around the same time to the General Medical Council [the GMC]. On 4 September 2012 she made a complaint to the ombudsman. The complaint was at that time directed at and limited to the care provided by Dr Howarth. She said at that time that “I do not blame Dr Miller at all”. It is clear from the evidence that Mrs Pollard had by then consulted a solicitor about the merits of a claim in clinical negligence.
On 13 August 2012 the ombudsman wrote to the practice informing them of the complaint and the practice responded by sending copies of relevant medical records. The only information provided by the ombudsman was that the complaint was “in reference to the treatment her late husband received from Dr Howarth during a home visit on 13 June 2012” and that the ombudsman intended to “ take a closer look at the complaint”. At no time during the ombudsman's process was Mrs Pollard's complaint to the ombudsman disclosed to either of the doctors or the practice: that only occurred six months after the issue of the judicial review claim.
The GMC subsequently confirmed to Dr Miller that she was not the subject of a complaint to them and on 4 October 2012, after conducting their own investigation, concluded that no further action should be taken in respect of the complaint against Dr Howarth. Mrs Pollard did not pursue negligence proceedings against either doctor.
On 8 November 2012 an officer in the ombudsman's office known as ‘the assessor’ considered the complaint with a view to establishing whether or not an investigation should be undertaken. The assessor sought clinical advice from one of the ombudsman's clinical advisors which was received on 22 November 2012. She then completed an assessment form on 29 November 2012 recommending that the complaint be accepted for investigation. On 7 December 2012 the complaint was considered by an assessment panel of senior officers in the ombudsman's office who accepted in principle that it was reasonable to investigate the same.
On 12 December 2012 the ombudsman wrote separately to Dr Howarth and to the practice but not to Dr Miller. The letter asked for initial comments on the proposal to investigate the complaint which it should be recollected had not yet been disclosed. The letter did not disclose the completed assessment or the clinical advice that had been obtained.
A telephone conversation subsequently took place on 19 December 2012 between the practice manager and the ombudsman's office in which a representative of the ombudsman advised the practice “ that they would not expect anything further at this stage but had a legal obligation to ask this question”. In fact by that stage the ombudsman's office had taken the steps I have described in paragraph [11] above and in particular had made a decision to investigate without informing the doctors or the practice of the steps they had taken or the material or reasoning upon which they relied.
In response, on 19 December 2012, the practice wrote to the ombudsman stating that the complaint had been discussed with Dr Howarth and “ we feel there are no further comments to add at this point”. By then the ombudsman had written again on 18 December 2012 to inform the practice and Dr Howarth but not Dr Miller that an identified investigator had been allocated.
On 14 January 2013 an official in the ombudsman's office known as ‘the investigator’ telephoned Mrs Pollard to discuss the scope of the investigation and next steps. Mrs Pollard indicated that while she had not initially complained about Dr Miller “on reflection she thought that if the second doctor had come out and seen him the course of events might have been different”. She confirmed that she was happy for advice to be obtained about the care provided on both dates (that is the 13 June 2012, when Mr Pollard was seen by Dr Howarth, and the 15 June 2012, when Mrs Pollard spoke to Dr Miller). She also confirmed that what she was looking for was “ an acknowledgement of failings, an apology and action taken to prevent a recurrence”. She was asked by the investigator whether she was seeking financial compensation and she said that “it would help”. This was both a new complaint against Dr Miller and a new expression of the remedies sought by Mrs Pollard, the latter of which was relevant to the statutory functions of the ombudsman.
The investigation:
On 17 January 2013 a planning meeting was held between a representative of the investigator and other relevant officers of the ombudsman (not including the assessor or any member of the assessment panel) at which the scope of the investigation was determined.
On 18 January 2013 the investigator wrote to the practice to advise them of the scope of the investigation and to explain how the investigation would be carried out. A letter to Dr Howarth of the same date was attached. Near identical letters were sent to the practice and to Dr Miller on 25 January 2013. It should be noted that the letter of 25 January 2013 was the first notification to Dr Miller that a complaint about her had been made or that it was being investigated by the ombudsman. The appellants were given an opportunity to comment early on in the investigation or to await the provisional report and comment upon that. The investigation was described as being into “ Mrs Pollard's complaint that the Practice provided unacceptable care to Mr Pollard in June 2012”.
The appellants at that stage did not have details of the original or enlarged complaint nor did they have the assessment or the clinical advice relied upon. On 29 January 2013 the practice responded, stating that full information had been sent and that there was “ nothing further we can add”.
On 30 January 2013 the investigator sought detailed clinical advice from one of the ombudsman's specialist general practice advisers [the GP Adviser]. That advice was received on 28 February 2013. On 18 March 2013 the investigator sought further detailed clinical advice from a consultant colorectal surgeon [the Surgical Adviser]. That advice was received on 8 May 2013. Neither of the advices was disclosed to the appellants until after the ombudsman's draft report was delivered.
On 17 October 2013 the investigator delivered a draft report [the Draft Report], to Drs Howarth and Miller on the same day. The letter accompanying the Draft Report referred to the report being in “ draft” and containing “ provisional conclusions and the recommendations that the Ombudsman is minded to make”. The Draft Report made reference to the advice of the GP and Surgical Advisers and set out such of their advice as the investigator relied upon. The Draft Report set out in clear and emphatic terms a series of conclusions and recommendations which included that the complaint be upheld, that there should be an acknowledgement of the identified failings, an apology for the consequential injustice and compensation for the distress caused. I have annexed to this judgment extracts of the language used in that report.
Upon receipt of the Draft Report the appellants consulted their medical defence...
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