A general practitioner refused to pay £10,000 which the Northern Ireland Commissioner for Complaints had recommended to the widow of a patient who died of a heart attack. The Supreme Court dismissed the Commissioner’s appeal. He could not properly make that recommendation, or threaten a special report to the Assembly, where the widow had sought an explanation rather than money and the doctor was a private practitioner, not a public body against whom such a recommendation could be enforced.
The appeal was brought by the Northern Ireland Commissioner for Complaints. The respondent, anonymised as JR55, was a general practitioner in sole practice. He provided services under contract with the local Health and Social Care Board, so a complaint about him could be investigated under article 8 of the Commissioner for Complaints (Northern Ireland) Order 1996. That is a different jurisdiction from his power, under article 7, to investigate listed public bodies. Lord Sumption gave the only judgment. Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Toulson agreed.
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The complaint and the recommendation
A widow complained about the care her husband had received before his death. The Commissioner investigated how the GP had handled the case.
The widow told the Commissioner’s staff that she did not want compensation. She wanted to understand what had happened. He investigated on that basis and found that the practice had not provided a reasonable level of care and treatment. He found maladministration in the failure to act after the treadmill test, the failure to follow up the clinic’s refusal promptly, and the failure to refer R to the emergency services on 6 January. He also found that, after the death, the doctor had assigned responsibility to the hospital too soon, discouraged a complaint, and failed to report back after promising to contact the hospital. He made no finding that these failures caused the death, and specifically found that the failure on 6 January made no difference. He nonetheless recommended that the practice pay the widow £10,000 for the failings and the events which followed.
The doctor apologised and changed his procedures. After taking advice, he refused to pay, saying he was not legally bound to do so. The Commissioner said he was minded to lay a special report before the Northern Ireland legislature about the refusal. The Court of Appeal held that he had neither power. He appealed.
Money was outside the basis of the investigation
Lord Sumption held that the facts gave a short answer. Article 9(3) prevents an investigation into action for which the person aggrieved has, or had, a remedy in court. Subject to article 9(4), that limit is a condition of jurisdiction. It does not depend on whether the complaint is well founded. What matters is whether, if it were justified, there would be a court remedy. He applied the approach taken to a similar limit on the Local Government Ombudsman in R v Commissioner for Local Administration, Ex p Croydon London Borough Council.
Article 9(4) allows an investigation if it is not reasonable to expect the complainant to go to law. That mainly covers cases where litigation would not be worth the cost, but it can also cover someone who wants an explanation rather than money. Investigating on that basis was proper. It could not then be proper to recommend a payment and threaten to report the doctor for refusing to pay.
Why a recommendation against a GP is different
The Court of Appeal had also held that the Commissioner had no power to recommend monetary redress at all. Lord Sumption explained why other ombudsman cases do not simply apply. Government practice is to comply with such recommendations unless there are good reasons not to. In R (Bradley) v Secretary of State for Work and Pensions, a minister was held not to be bound by the Parliamentary Commissioner’s findings, but unable rationally to reject them without cogent reasons. That principle cannot be transposed unchanged to a money recommendation against a medical practitioner.
The Commissioner is not a court. Apart from compelling witnesses and documents, he cannot compel anyone. His recommendations do not bind as a matter of private law. A public body may have a public-law duty not to reject them irrationally, but this doctor had no relevant public-law duty. He provided services under a contract. He was not a public body.
The 1996 Order maintains that distinction. Under article 16, a person who has suffered injustice through maladministration by a public body investigated under article 7 may claim damages in the county court. The court decides the claim on the merits. The Commissioner’s report is evidence unless the contrary is proved, and the body may dispute it. Damages cover expenses reasonably incurred and loss of a benefit which might reasonably have been expected. Under article 17, persistent or systemic maladministration by such a body may lead the Attorney General to seek an injunction. Neither route applies to an article 8 investigation of an individual practitioner, and there is no other statutory means of enforcing a money payment against a private contractor. A private person also cannot challenge the findings as a public body can under article 16. Judicial review allows only a limited review of the merits. Lord Sumption saw no reason why the Order should leave a private individual, who had no duty to comply, with a narrower challenge than a public body. The assumption must have been that the Commissioner would not make recommendations against private individuals which could have no legal effect under the Order or the general law. As applied to article 8, that was what the majority of the Court of Appeal had decided, and he agreed.
Settlement, and the special report
There is a limited power to recommend money. Article 11 lets the Commissioner try to settle a complaint and, if that fails, state what should be done to achieve a fair settlement. Where loss has been suffered, that is likely to include making the loss good. That power is available whether the person investigated is public or private. It was irrelevant here, because he never tried to settle. Settlement might well have been straightforward: the widow had not asked for money, and the doctor had accepted the other recommendations. Lord Sumption left open whether recommendations may also be made for use in an article 16 claim against a public body. That question did not arise.
Nor could publicity fill the gap. The Commissioner relied on the idea that an ombudsman’s strength is inquiry and publicity rather than legal power. Lord Sumption accepted that for the United Kingdom Parliamentary Commissioner, who is an officer of the legislature, investigates complaints referred by an MP against public bodies, and may lay a special report before Parliament if injustice is not remedied. The Assembly Ombudsman has a corresponding power. The Complaints Commissioner was deliberately given none, in 1969 or 1996. He receives complaints directly from the public and reports to the complainant and the person investigated. He is not an officer of the legislature in the same sense, and the legislation did not authorise him to denounce a private individual who owed no relevant duty.
The general reporting power in article 19 did not provide a means of pursuing an individual practitioner over refusal to pay.
The amount
The limits on the Commissioner’s powers made it unnecessary to decide whether £10,000 was a rational recommendation. Lord Sumption nonetheless said that, had the power existed, this recommendation would have failed. A permitted money recommendation is discretionary and need not be calculated as a court would calculate damages, but it must be rational and explained. The report did not say why £10,000 was appropriate, how it was reached, or what loss it compensated. Some failings had made no difference, and events after the death could not have caused it. The sum might have been intended as a solatium for injured feelings, but the report did not say so, and without explanation it seemed excessive. On the face of it, the figure had simply been plucked out of the air.
Verdict: The Court unanimously dismissed the Commissioner’s appeal. He had no power in this investigation to recommend that the individual GP pay £10,000, or to make a special report to the Assembly about the refusal.
Source: In the matter of an application by JR55 for Judicial Review (Northern Ireland) [2016] UKSC 22
