Tribunals, Inquiries and Ombudsman Lecture

A. Tribunals

Administrative justice defines the various institutions and procedures that are located within the wide area between government departments and courts of law. Within this region are often diverse struggles between the legal world and the political world. This chapter will consider the various tribunals that have been established to adjudicate legal decisions, which have their own procedural regulations and series of precedents. Furthermore, the chapter will examine the operation of public inquiries in which government departments have dominant roles, but in which key procedural regulations exist to maintain transparency and accountability. Also considered in this section will be the Inquiries Act 2005, which provides for the investigation of major scandals and disasters that occur within the area of government. Finally, this chapter will cover the role of ombudsmen. Their role is to investigate individual complaints about acts of government and public authorities and evaluate whether injustice has occurred within official acts.

Tribunals are statutory bodies which hear and make decisions on appeals by members of the public against first-instance decisions made by government bodies. In the area of asylum, for example, an asylum seeker may appeal against the decision of the Home Office to the Immigration and Asylum Chamber of the First-tier Tribunal. In matters of social security, an individual may appeal a decision of the Department for Work and Pensions to the First-tier Tribunal’s Social Entitlement Chamber. A tribunal can then determine the appeal of the official decision and substitute its own decision for that of the initial decision-maker.

Tribunals are of great significance in the current legal system as they are able to provide specialist knowledge of particular areas of public decision-making in areas where ordinary courts may not have this specific expertise. Certain tribunal systems exist as legal systems in their own right, with their own procedural rules, form of judiciary, law reports and legal cultures. Tribunals are thus a central facet of the administrative justice system, ensuring the legality of decision-making at all levels of government. In areas of mass decision-making by government, such as social security, immigration and education, great volumes of challenges might arise to public decisions. The role of tribunals is to establish independent bodies that can review these decisions and ensure that the state discharges its responsibilities with correct decisions.

Tribunals have historically been created on an ad hoc basis in specialist areas of government, with little consideration of the need to establish a ‘tribunal system.’ Government policy has latterly attempted to provide a coherent structure to these bodies. The Tribunals, Courts and Enforcement Act 2007 established a new simplified statutory framework for tribunals. This section will further consider how the implementation of this Act has led to a distinct system of tribunals, which provide the public with an effective means of challenging the decisions of public bodies, and the extent to which tribunals comprise a distinct system of administrative justice.

The system of tribunals

There currently exists a diverse array of tribunals operating in areas such as social security, health, education, employment, tax, finance, pensions, immigration and asylum, transport and traffic, and criminal injuries compensation. Most tribunals are required to adjudicate disputes between state actors and a private individual or company. There are other tribunals which adjudicate disputes between two sets of private individuals, including disagreements between employers and employees within the employment tribunals. The Employment Appeal Tribunal hears appeals from the employment tribunals. The employment tribunal is governed by the Employment Tribunals Act 1996, which provides that the employment tribunal may hear cases relating to matters such as unfair dismissal, discrimination in the workplace or redundancy compensation payments.

Tribunals are statutory creations and ultimately tools of government policy; hence, the makeup and composition of the tribunal system is subject to change depending upon the present government and the particular policies which the majority political party wishes to implement. As immigration has become an issue of party politics and pressures have increased upon the immigration system, the tribunal system that determines appeals from initial immigration decisions has come under increasing pressure. Pressure on governments to ensure that the immigration appeals tribunal has been able to deal with its large caseload has meant several radical reforms within this tribunal structure. The most radical reform of the immigration appeals tribunal system was carried out in 2004, when the tribunal was reformed from the existing two-tier structure. Appeals had initially been determined by the Immigration Appellate Authority and then by the Immigration Appeal Tribunal. A single-tier system replaced this two-tier approach to speed up the process and reduce the number of second-instance appeals. A two-tier system was reintroduced in 2010, when the Immigration and Asylum Chamber of the First-tier Tribunal took over the hearing of initial appeals in asylum or immigration cases. There is a further possibility of appeal to the Immigration and Asylum Chamber of the Upper Tribunal.

Tribunals and judicial review

Both tribunals and judicial review offer means by which individuals can challenge the decisions of government bodies. The distinction between judicial review and the tribunal system is an important one: during the process of judicial review, the court can only make a determination on the lawfulness of a government decision, whereas tribunals are able to carry out a merits-based appeal. The tribunal is thus able to retake the initial decision rather than revert the case back to the original decision-maker for a determination on the merits of the case.

The court in judicial review proceedings focuses only upon the legality of the administrative decision, whereas the tribunal appeal system has jurisdiction to review the factual elements of the case. The jurisdiction of judicial review is based upon the court’s inherent jurisdiction, so it makes decisions based on general legal principles such as legality, reasonableness and procedural fairness. Tribunals are created by statute, and their jurisdiction depends solely upon that which is afforded to them through the legislation which created them.

The reorganisation of tribunals

A major review of tribunals was conducted in 2001 for the first time since the Franks Report of 1957. The Leggatt review was carried out by a retired Court of Appeal judge, Sir Andrew Leggatt, and an expert panel. The review found a total of 70 different tribunals in England and Wales, which between them were disposing of nearly a million cases a year. The report observed that the tribunal system in England and Wales had been established in a haphazard fashion and that there was a lack of systematic integration of its many elements. The Leggatt review proposed a single tribunal system administered by an integral tribunal service, separated into various divisions according to their subject matter. These divisions would be created under nine headings: (a) trade, competition and intellectual property, (b) transport, (c) finance and taxes, (d) health and social care, (e) asylum and immigration, (f) property, land and valuation, (g) employment, (h) education and (i) social security, pensions and criminal injuries compensation. The review also proposed a general second-tier tribunal to hear appeals, since the existing system created a confusing array of rights of appeal from the various first-tier tribunals.

The Tribunals, Courts and Enforcement Act 2007 (TCEA) aimed to implement the reforms that had been proposed within the Leggatt review. Part I of the TCEA established two new tribunals of a general nature, with the aim of replacing the majority of first-tier tribunals and appellate tribunals. These were the First-tier Tribunal (FTT), which makes first-instance decisions, and the Upper Tribunal, which hears appeals from the FTT (s.3 TCEA). The TCEA also created the role of the Senior President of Tribunals, who is appointed by the King on the recommendation of the Lord Chancellor (s.2 TCEA).

The Senior President is responsible for ensuring that tribunals are accessible, fair, quick and efficient, and for ensuring that those working within the tribunals have specific expertise in the area of law for which the tribunal is responsible (s.2 TCEA). The tribunals are comprised of judges but also of non-legal members who are specifically trained or have relevant experience in the areas in which the tribunal operates, such as in medicine or finance.

The First-tier Tribunal is organised in a series of chambers, each headed by a judge as president. The First-tier Tribunal currently comprises seven chambers:

1. the General Regulatory Chamber
2. the Social Entitlement Chamber
3. the Health, Education and Social Care Chamber
4. the War Pensions and Armed Forces Compensation Chamber
5. the Tax Chamber
6. the Immigration and Asylum Chamber; and
7. the Property Chamber

The Upper Tribunal is organised into four chambers:

1. the Administrative Appeals Chamber
2. the Tax and Chancery Chamber
3. the Lands Chamber; and
4. the Immigration and Asylum Chamber

The Upper Tribunal hears appeals from more than one chamber of the FTT, although the FTT has power to review its own decisions, which it may or may not refer to the Upper Tribunal. This ability to review their own decisions enables the FTT to deal with cases that are obviously wrong without the need to appeal the decision to the Upper Tribunal. The parties may appeal to the Upper Tribunal on a point of law if permission is given by the FTT. In certain instances, the Upper Tribunal is able to carry out a form of judicial review, and cases may be transferred from the Administrative Court to the Upper Tribunal or in the opposite direction (ss.15–21 TCEA). If permission is granted, there is also a possibility of appeal from the Upper Tribunal to the Court of Appeal.

Some tribunals remain outside the two-tier scheme created by the TCEA. These include:

1. the Investigatory Powers Tribunal, created by the Regulation of Investigatory Powers Act 2000;
2. the Proscribed Organisations Appeal Commission, created under the Terrorism Act 2000; and
3. the Competition Appeal Tribunal, established under the Enterprise Act 2002.

A tribunal system must be established under statutory authority to be brought within the TCEA system. Private and domestic tribunals must exist outside the scheme, although bodies that hear appeals from local authorities may in future be incorporated within it.

The Administrative Justice and Tribunals Council was also created under the TCEA. The Council had the authority to review the administrative justice system, to review the constitution and working of specified tribunals, and to keep the work of statutory inquiries under review. The Council was also required to consider ways in which the system of administrative justice could be made ‘accessible, fair and efficient’ and advise ministers on the development of this system (TCEA, sch.7, para.13(1)). In 2011, the government proposed the abolition of the Council, a proposal that was strongly criticised in Parliament; however, the government carried out its decision to remove the Council on 19 August 2013. No direct replacement body was established, although oversight of the tribunal system now falls primarily to the Senior President of Tribunals and the Ministry of Justice.

B. Public inquiries

The public inquiry is an administrative process which became popular during the 20th century as government departments obtained powers to intervene in the matters of local authorities, in areas relating to town planning, public health, compulsory purchase of land or housing. The Franks committee in 1957 considered that the object of the inquiry procedure was twofold: first, to allow those most affected by government proposals to raise objections; and secondly, to make certain that the relevant minister was aware of the salient facts in order to make an informed decision about certain proposals.

The Franks committee made the following series of recommendations:

1. individuals should be warned in sufficient time of the case to answer within the inquiry;
2. government policy reasons should be disclosed within the inquiry;
3. the inspectors who were in control of the inquiry should be independent of the minister directly concerned with the particular proposal; they should be responsible to the Lord Chancellor;
4. the final decision should be announced with a letter from the inspector and the minister;
5. this letter should contain full reasons for the decision;
6. the ability to challenge the decisions should be made available on the grounds of jurisdiction and procedure in the High Court.

These proposals were accepted, except that the inspectors were not transferred to the Lord Chancellor’s department; this is broadly how planning inquiries continue to operate.

Rules of procedure for public inquiries

The Lord Chancellor has powers under the Tribunals and Inquiries Act 1992, s.9 (as amended) to make rules which regulate the procedure for statutory inquiries. Inquiries are often made into matters such as compulsory purchase orders or appeals against the refusal of planning permission. If a minister proposes not to follow an inspector’s recommendations due to new material that arises after the close of an inquiry, the public authority and objectors must be informed, as they have the right to request that the inquiry is reopened. An example of this occurred in the Chalk Pit Affair.

The rationale for the procedural rules is to establish fairness and transparency within the process of the inquiry. These rules are enforceable in courts and they are derived from principles of natural justice, which can be statutory or common law.

The changing use of public inquiries

The role of planning inquiries has diminished in certain respects in recent years, although they continue to be part of the process by which decisions are made in relation to the use of land for developments that are of environmental significance. Increased involvement of the legal profession in inquiries has led to delays in the decision-making process. Steps were made to restrict the use of public inquiries, including ss.100–101 of the Planning and Compulsory Purchase Act 2004, which authorised a written representations procedure for use in connection with compulsory purchases.

The Inquiries Act 2005

The Inquiries Act 2005 deals with legal provision for the investigation of national disasters or major scandals. Current practice is to appoint retired or serving judges to chair such inquiries. Public inquiries were previously held under the Act’s predecessor, the Tribunals of Inquiry (Evidence) Act 1921. These included the Aberfan disaster of 1966, the Bloody Sunday shootings in Londonderry in 1972 (with a further inquiry reporting in 2010), the Dunblane shootings in 1996 and the abuse of children in North Wales in 1999. Inquiries of this nature were not considered suitable in other circumstances. Lord Franks was appointed to chair a committee of privy counsellors to investigate the events leading to the Falkland Islands hostilities. The Butler review of intelligence on weapons of mass destruction in Iraq used a similar methodology. In 2009, the Chilcot Inquiry was established to investigate British involvement in the war in Iraq from 2001 until July 2009; its report was published in July 2016.

The Inquiries Act 2005 provided a new legal framework for inquiries and repealed the 1921 Act. The 2005 Act empowers any minister in the UK government to appoint an inquiry into events that may cause public concern, or where ‘there is public concern that particular events may have occurred’ (s.1(1) Inquiries Act 2005). The inquiry does not establish criminal or civil liability, but it may find as facts events that lead to an inference of such liability (s.2). The minister will appoint a chair of the inquiry, who may work with other members in consultation with the chair (ss.3–4). The conduct and procedure of the inquiry are to be directed by the chair, subject to fairness and the requirement to avoid unnecessary costs (s.17).

A number of prominent inquiries have been established under the 2005 Act. Earlier examples include the Mid Staffordshire NHS Foundation Trust Inquiry (which reported in 2013) and the Leveson Inquiry into the Culture, Practices and Ethics of the Press (which reported in 2012). More recent high-profile inquiries under the Act include:

• the Infected Blood Inquiry, chaired by Sir Brian Langstaff, which published its final report in May 2024, finding that the infection of thousands of patients with contaminated blood products was not an accident but the result of failures across government, the NHS and the blood services;
• the Grenfell Tower Inquiry, chaired by Sir Martin Moore-Bick, which published its Phase 2 report in September 2024, examining the causes of the fire at Grenfell Tower in June 2017 in which 72 people died; and
• the UK Covid-19 Inquiry, chaired by Baroness Hallett, established in June 2022 to examine the UK’s preparedness for and response to the Covid-19 pandemic. Its first module report was published in July 2024.

These inquiries demonstrate the continued significance of the Inquiries Act 2005 as a mechanism for investigating matters of serious public concern and holding government and public bodies to account.

C. Ombudsmen

There are public and private sector ombudsmen; this section is concerned with the former. The system of ombudsmen in England is fragmented, with various ombudsmen dealing with complaints relating to various areas of public responsibility. These include:

1. the Parliamentary and Health Service Ombudsman (PHSO), which combines the roles of Parliamentary Commissioner for Administration and Health Service Commissioner for England (complaints pertaining to central government bodies and the NHS in England);
2. the Local Government and Social Care Ombudsman (complaints pertaining to local authorities and social care providers in England);
3. the Housing Ombudsman Service (social landlords).

The models in Scotland and Wales provide more integrated alternatives to the English approach, but it is an essential element of devolution that each country within the UK is able to deal with such matters in whatever way it considers appropriate.

In 2000, a Review of the Public Sector Ombudsmen in England: A Report by the Cabinet Office concluded that an integrated model should be adopted in England by merging the various public sector ombudsmen. The difficulty of this approach is that the Parliamentary Ombudsman has jurisdiction over both English and UK-wide public bodies, so a merger of UK and English bodies would lead to further complexity. Modest reforms were instead implemented in 2007, which permit the Parliamentary, Health Service and Local Government Ombudsmen to conduct joint investigations and issue joint reports on issues relating to overlapping areas of jurisdiction.

In December 2016, the government published the Draft Public Service Ombudsman Bill, which proposed merging the PHSO and the Local Government and Social Care Ombudsman into a single Public Service Ombudsman for England. The Bill also proposed abolishing the MP filter (discussed below). However, the Bill was never formally introduced to Parliament, and the proposal has not been revived. The fragmented structure therefore remains.

The role of public sector ombudsmen

The principal role of ombudsmen is to achieve redress for individuals who have experienced harm due to maladministration. There is also a quality-control function of the ombudsmen, in order that broader systemic issues within public authorities should be addressed. When dealing with systemic failure of this kind, the ombudsmen carry out an important public function in holding the government to account. Many ombudsmen seek to combine these two approaches to their functions. In the investigation of a large number of individual complaints, an ombudsman might gain insight into a wider systemic failure in government functions.

In 2003–05, the Parliamentary Ombudsman received large numbers of complaints about the system of tax credits, in which individuals would be overpaid for significant periods of time and then required to repay this overpayment at some later date. For those already on low incomes, this repayment could lead to serious hardship. This series of cases led the Ombudsman to consider the tax credits system as a whole, leading to recommendations in Tax Credits: Putting Things Right. A similar review was carried out jointly between the Health and Local Government Ombudsmen in 2008–09. In Six Lives: The Provision of Public Services to People with Learning Disabilities, the treatment of six people with learning disabilities who died in NHS or local authority care was reviewed. This led to the recommendation that all NHS and social care organisations in England should urgently review their treatment of people with learning disabilities.

In recognition of the two functions of dealing with individual complaints while undertaking broad-reaching reviews, ombudsmen deal in different ways with the varying kinds of complaints received. A proportion of cases are dealt with under full investigation, whereas many other complaints are either rejected or resolved in an informal manner with the relevant public body. The PHSO publishes annual reports and case data which provide up-to-date statistics on complaint volumes and outcomes.

Ombudsmen and the political process

There are a number of ways in which ombudsmen play a role in the political process. The role, as initially conceived of by Drewry and Harlow, was as ‘an adjunct to the MP’s traditional and cherished role as grievance-chaser on behalf of constituents’ [‘A "Cutting Edge"? The Parliamentary Commissioner and MPs’ (1990) 53 MLR 745, 753]. The relationship between the Ombudsman and Parliament has been developed in a number of ways. The Ombudsman now carries out the following functions in relation to the political process:

1. To report to Parliament each year on the performance of functions under the Parliamentary Commissioner Act 1967 and otherwise as is necessary. Reports were made to Parliament in relation to the overpayment of tax credits and the deaths of six individuals with learning disabilities in NHS or local authority care.
2. The Ombudsman can draw a matter to Parliament’s attention when it determines that maladministration has taken place and the relevant public body will not remedy it. The enforcement of an ombudsman’s recommendations is based upon the pressure they can bring to bear on government.
3. The Public Administration and Constitutional Affairs Committee (PACAC) of the House of Commons has a special relationship with the Parliamentary Ombudsman. The Committee both scrutinises the Ombudsman’s work and applies political pressure onto government to accept the recommendations of the Ombudsman.
4. A controversial element of the Ombudsman’s role is the so-called MP filter. The Ombudsman may investigate a complaint, but this needs to be referred by the complainant’s MP. This distinguishes the Parliamentary Ombudsman from other UK public sector ombudsmen, to whom an individual can complain directly. The reason for the MP filter is considered to be pragmatic and to shield the Ombudsman from an unsustainable workload, although evidence suggests that it may deter valid complaints in practice. The MP filter is also thought to fulfil a constitutional function, by requiring the MP to bear primary responsibility for addressing their constituent’s complaints regarding public authorities. The Draft Public Service Ombudsman Bill 2016 proposed abolishing the MP filter, but as the Bill was never enacted, the filter remains in place. Calls for its abolition continue.

Investigations by ombudsmen

There are specific procedures that must be followed to consider whether an ombudsman will investigate a particular matter. First, it must be a public body that is under consideration. Legislation is clear in this respect in that it lists the institutions which are capable of being investigated by the particular ombudsman. The Parliamentary Ombudsman is authorised to investigate public bodies which are listed under Schedule 2 of the Parliamentary Commissioner Act 1967.

There are matters which are excluded from the relevant ombudsman’s jurisdiction to investigate. The Parliamentary Ombudsman is unable to investigate matters which affect international relations, the commencement of civil or criminal proceedings or the granting of honours (Schedule 3, Parliamentary Commissioner Act 1967). Contractual and commercial transactions are excluded under Schedule 3, para.9, which proves particularly controversial since the spending of large amounts of public money is likely to impact upon certain individuals. Since the contracting-out of service provision has become increasingly common, the exclusion is becoming ever more far-reaching in its scope.

The next stage in the investigation is to consider whether maladministration occurred. The Ombudsman can investigate complaints from individuals who claim to have sustained ‘injustice in consequence of maladministration’ (s.5(1)(a) Parliamentary Commissioner Act 1967). No positive attempt has been made to define maladministration within any legislation, however. Maladministration addresses the decision-making process as opposed to the merits of the particular case. However, the distinction between these two things is not always clear-cut, and often it is impossible to draw a clear line between the two.

When Richard Crossman MP introduced the idea of ombudsmen to Parliament, he listed a number of things that would be covered by the concept of maladministration. These include: ‘bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on’ [Hansard HC Deb, vol.734, col.51]. The Parliamentary Ombudsman’s annual report in 1993 added a number of other possibilities to this list, including rudeness, denying an individual’s rights, knowingly giving misleading or inadequate advice, offering little or no redress, faulty procedures, failure to monitor compliance with correct procedures, disregard for guidance on fair treatment, and failure to mitigate inflexibility leading to unequal treatment.

More recently, the Parliamentary and Health Service Ombudsman has moved away from the concept of maladministration towards defining the positive concept of good administration. This includes:

• Getting it right
• Being customer focused
• Being open and accountable
• Acting fairly and proportionately
• Putting things right
• Seeking continuous improvement

[Parliamentary and Health Service Ombudsman, Principles of Good Administration (London, 2009)]

After considering whether maladministration has occurred, the ombudsman must go on to consider whether this maladministration has led to an injustice towards the complainant. The notion of injustice considered here is broader than that considered within general legal proceedings.

As public bodies, ombudsmen are themselves amenable to judicial review. If ombudsmen exceed the scope of their discretionary powers, the courts are able to rule their decisions unlawful. The ombudsman’s discretion to undertake an investigation is also subject to judicial review. However, this is subject to a number of judicial decisions and qualifications.

Courts have also been willing to limit the scope of an ombudsman’s investigations.

Finally, courts may scrutinise and apply the normal principles of judicial review as to whether an ombudsman’s decision-making and conclusions are lawful.

Administrative justice – tribunals and ombudsmen (hands-on example)

The following problem questions provide examples that can test your knowledge and understanding of the topics covered in the chapter on tribunals and ombudsmen. Suggested answers can be found at the end of this section. Make some notes about your immediate thoughts and, if necessary, go back and review the relevant chapter of the revision guide. Working through exam questions helps you to apply the law in practice rather than just having a general understanding of the legal principles. This should help you be prepared for particular questions which may be presented in the exam.

Q1 Problem question

As a result of government austerity cuts in England and Wales, significant cuts have been made to the allocation of spending in the NHS, which has led to cuts in mental health services. As a result of these cuts, it has been reported that people with mental health conditions are experiencing significant deteriorations in their state of mental health and the number of attempted suicides has risen. The Health Service Ombudsman has received thousands of complaints relating to the deterioration in people’s mental health as a result of the withdrawal of certain vital services, including counselling services available through GPs and certain medication that had previously been prescribed by GPs to mental health patients.

A. How is the Health Service Ombudsman likely to deal with these complaints?

B. The Health Service Ombudsman finds that there has been maladministration and concludes that a specific complainant ought to have been treated using electro-convulsive therapy rather than referral to counselling or drug therapies. How might a court react to this decision of the Ombudsman?

Q1 A. Suggested answer

The Health Service Ombudsman (now part of the PHSO) may deal with the complaints under a full investigation, reject them, or deal with them in an informal manner in relation to the relevant public body.

Since there are over 1,000 complaints relating to this specific issue, it is likely that the Ombudsman will review the wider issue and investigate whether there is a general policy failure in a specific area.

The specific body which is under consideration must be listed within Schedule 2 of the Parliamentary Commissioner Act 1967.

The Ombudsman must consider whether there are any relevant exclusions in relation to their jurisdiction to investigate a particular matter; this includes contractual and commercial transactions under Schedule 3, para.9 of the 1967 Act. There may be difficulties if the health service has contracted out certain mental health services.

The Ombudsman will then need to consider whether ‘maladministration’ has occurred. This may be a difficult question in the circumstances, since the prioritisation of government spending does not amount to maladministration; there must be one of the matters from Richard Crossman’s list: ‘bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on’ [Hansard HC Deb, vol.734, col.51].

Since 1993, it is also relevant to consider rudeness, denying an individual’s rights, knowingly giving misleading or inadequate advice, offering little or no redress, faulty procedures, failure to monitor compliance with correct procedures, disregard for guidance on fair treatment, and failure to mitigate inflexibility leading to unequal treatment.

It is clear that there must be some malpractice on behalf of the public officials, not merely an unpopular decision which is made within the confines of their lawful powers.

In 2009, the Parliamentary and Health Service Ombudsman published Principles of Good Administration, which highlighted the positive concept of good administration. The elements of good administration include: getting it right, being customer focused, being open and accountable, acting fairly and proportionately, putting things right, and seeking continuous improvement.

If the Ombudsman finds that maladministration has occurred, they must then consider whether it led to an injustice experienced by the complainants. It is important to note that this notion of ‘injustice’ is broader than a strictly legal form that is considered within court proceedings.

In R v Parliamentary Commissioner for Administration, ex p Balchin (No.1) [1997] JPL 917, Sedley J held that an injustice could mean “the sense of outrage aroused by unfair or incompetent administration, even where the complainant has suffered no actual loss.” This may be the case if those with mental health problems have been subjected to maladministration. They may not be able to show any financial loss as a result of the withdrawal of mental health services, but may be able to show that injustice has occurred due to a sense of outrage at the manner in which they have been treated.

Q1 B. Suggested answer

The Ombudsman’s role is not to investigate the clinical decisions of doctors, but to review the decision-making process implemented by the relevant authorities. In R (Cavanagh) v Health Service Commissioner for England [2005] EWCA Civ 1578; [2006] 1 WLR 1229, the complainants brought their case to the Ombudsman claiming that the hospital had failed to provide continuing care for their daughter when a consultant to whom she had been referred had had their hospital department closed. Instead of reviewing this decision, the Ombudsman chose to review the clinical decisions of the specialists treating the girl, arguing that she had been misdiagnosed and offered the wrong form of treatment. The court found that the Ombudsman had acted outside of her powers in investigating the clinical decisions. Thus, a judicial review of the Ombudsman’s actions in suggesting that the complainant with mental health problems should have been offered electro-convulsive therapy instead of counselling and drug treatment would likely succeed, as such a conclusion exceeds the Ombudsman’s powers. The Ombudsman should instead have confined themselves to a review of the decision of the government department to stop referring individuals for counselling and limiting prescriptions of drugs to help people with mental health problems.

Cite This Module

To export a reference to this article please select a referencing style below:

• APA
• MLA
• MLA-7
• Harvard
• Vancouver
• Wikipedia
• OSCOLA