New ruling on the service failure test in clinical cases

Healthcare Regulatory Partner Simon Turner examines Weightmans’ recent Court of Appeal case striking down the test applied by the Health Service…

Miller & Anor v Health Service Commissioner for England [2018] EWCA Civ 14

Healthcare Regulatory Partner Simon Turner examines Weightmans’ recent Court of Appeal case striking down the test applied by the Health Service Commissioner in healthcare cases.

In a landmark decision, the Court of Appeal has struck down the standard/measure the Health Service Commissioner for England (‘the Commissioner’) applied when determining ‘service failure’ in a clinical case as ‘unlawful’. The judgment in the Miller case, handed down last week, effectively overturns the approach the Commissioner has generally taken when exercising its power to investigate ‘the exercise of clinical judgment’ by healthcare professionals pursuant to the Health Service Commissioner’s Act 1993 as amended.

The case, jointly supported by the Medical Protection Society and Medical Defence Union on behalf of two GPs, criticised in a report by the Commissioner following the death of a patient, raised a number of fundamental challenges to the Commissioner’s processes and analysis.

In a powerfully worded judgment, lead judge Gloster LJ Vice President of the Court of Appeal, described the standard the Commissioner applied in the case (its usual approach in such cases) as ‘beguilingly simple, but incoherent’, concluding it was ‘unreasonable and irrational and accordingly unlawful’. The court upheld the GPs’ appeal and quashed the Commissioner’s decision to investigate and the report, which had included a recommendation for compensatory payment.

The decision reflects concerns long-held by those involved in such cases that there is insufficient clarity as to the standard against which their actions are being measured and determined as service failures.

The Health Service Commissioner is in effect the appellate body for NHS complaints, with a wide discretion to investigate cases brought to them by individuals regarding the service/care received from health service bodies, including NHS Trusts, GPs and General Dental Practitioners.

Last year it accepted in excess of 3,700 cases for investigation. A 1996 amendment to its Act empowered the Commissioner to investigate ‘the exercise of clinical judgment’. Published statements from the then Commissioner preceding the amendment indicated the standard against which health service bodies/ practitioners would be held as that of ‘the reasonable and responsible clinician’ ; akin to the tests set out in the famous cases of Bolam / Bolitho, long-recognised in clinical negligence cases.

In R(Attwood) v Health Service Commissioner [2008] EWHC 2315 a move away from that standard was challenged. In a judgment, which nevertheless opened the doors to a change of approach, the court found that the 1993 Act did not bind the Ombudsman to Bolam/Bolitho, but provided the Commissioner with a wide discretion as to the standard applied, if clear and publically articulated.

However, the appeal was ultimately successful in that the court determined the test publically articulated up to that point, and thus the one which should have been applied, was effectively that of the reasonable and responsible practitioner.

Since Attwood the Commissioner has sought to apply what it describes as ‘a normative standard’ which in practical terms involves the identification on a case by case basis of relevant clinical standards/guidance or ‘established good practice’; consideration whether there have been departures from it; and whether such departures are serious enough to amount to service failure. The Commissioner’s own guidance has described this as ‘a broad test of reasonableness and fairness, not a test of perfection’, but also that this is ‘not accepted practice’, not ‘reasonable practice’, nor practice ‘that could reasonable be expected’. The result, the appellants argued in Miller, is a test which lacks coherence and consistency and is fundamentally unfair. The Court of Appeal has now agreed, stating in terms that:

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”.

The Court also concluded there was sufficient evidence of ‘pre-determination’ to strike down the report i.e. that a fair-minded and informed observer, having considered the facts, would conclude there was a real possibility that the tribunal was biased. The Court’s conclusion followed careful consideration of the Commissioner’s investigation file. This included scrutiny of the language used in its draft report; the investigator’s approach when considering the responses (including expert evidence) on behalf of the GPs and comments made in statement(s) served in the proceedings indicating that supposedly provisional, draft reports, need to be ‘overturned’. The Court said this:

This court has had the advantage of being taken through the entirety of the ombudsman’s file. The contents give 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’. The language used by the ombudsman’s officers was firm, concluded and adverse and gave no hint that there may be a possibility of doubt. It may be the case that the absolute nature of the standard of review adopted by the ombudsman tends to inculcate an approach that there cannot be a reasonable explanation or alternative once a clinical opinion is given by an independent advisor that is adverse”.

Elsewhere in the judgment, the court found an unlawful failure to provide the GPs, pursuant to section 11(1A) of the Act, with the opportunity to comment before the decision to investigate was taken; and a failure to properly apply section 4(1) of the Act, which requires consideration of whether a request for investigation should be rejected on the basis the complainant has an alternative legal remedy. The court also identified a number of failings in the process which, although falling short of unlawfulness, were nevertheless examples of ‘poor practice in the field of administrative adjudication’. These included non-disclosure of the original complaint and of subsequent telephone contact with the complainant and failure to include with the draft Report copies of the clinical advisers reports relied upon (which were later disclosed).

It is understood that the Commissioner is seeking to appeal the judgment to the Supreme Court, but in the meantime, the judgment provides an important balancing check upon the wide discretion the Commissioner claims in relation to its approach to such cases. Healthcare practitioners or bodies facing such investigation should seek advice as to its impact in their case; not least in relation to understanding, and if necessary challenging, the standard against which the Commissioner is seeking to measure their care and the process by which the investigation is pursued.

For further information about any of the issues in this update, please contact Simon Turner, Partner in the Healthcare Regulatory team.

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