Tribunals and Ombudsman Lecture - Hands on Examples

Q1 A. Suggested Answer

The Health Services Ombudsman may deal with the complaints under a full investigation or 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 Health Services 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 Parliamentary Commissioner Act 1967.

The Health Services 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 1967 Act. There may be difficulties if the health service has contracted out certain mental health services.

The Health Services 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 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 on inadequate advice, offering little or no redress, faulty procedures, failure to monitor compliance with correct procedures, disregard for guidance on fair treatment, 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 Services Ombudsmen 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, Seeking continuous improvement.

If the Health Services Ombudsman finds that maladministration has occurred, they must then consider whether it was that led to an injustice experienced by the claimants. 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 the injustice has occurred due to a sense of outrage in the manner in which they have been treated.

Q1 B. Suggested Answer

The Ombudsman's role is not to investigate the clinical decision of the 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 which 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 its 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 therapies instead of counselling and drug treatment would be an act that exceeds their powers. They should have instead confined themself 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.