THE Health Service Ombudsman has a wide remit to investigate complaints about the NHS and in the past few years the ombudsman has acted robustly in relation to important issues. However, a judgment of the Court of Appeal last month had the court rule that the ombudsman had gone too far in investigating a complaint about the treatment of a disabled child.
Tess Redmond is a 13-year-old girl who has suffered since birth from epilepsy and learning and communication difficulties. She had been receiving treatment for vitamin B12 deficiency under the auspices of two consultants at the Chelsea and Westminster Hospital, but the B12 unit was closed and Tess went without treatment. Her father made a complaint in 2001 against the Westminster and Chelsea NHS Trust for closing the unit and failing to continue treatment for Tess.
However, much to Mr Redmond’s dismay, the ombudsman ordered independent clinical reports which, instead of concentrating on the actions of the trust, produced a “damning” conclusion on the judgment and competence of the two doctors who had been treating Tess, which resulted in the doctors being referred to the General Medical Council. In short, as a result of these expert reports the ombudsman questioned the diagnosis of B12 deficiency by the doctors and the course of treatment that followed.
The ombudsman argued that her statutory powers enabled her to go outside the strict scope of complaints made to her by members of the public and to investigate and report on related issues as well. A High Court judge agreed. The doctors and Mr Redmond challenged this judgment in the Court of Appeal. The court noted the “heavy critique of the doctors” in the ombudsman’s report while criticism of the trust (the subject of the complaint) was “so low-key as to be barely audible”.
The court said that because the trust in its response to the complaint had accepted the treatment as appropriate, the diagnosis and treatment were irrelevant factors for the ombudsman to investigate and report upon. It was pointed out that the two practitioners had never had a complaint made against them and had no idea that they were under investigation. It was wrong that the investigation had led to them being reported to the GMC. The court emphasised that it was not making a technical or marginal decision and that the ombudsman had exceeded her powers “so substantially as to vitiate (her report) in its entirety”.
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The judgment is a stark reminder that ombudsmen, and indeed all statutory bodies, must act only within the powers given to them by Parliament and even the most well intended departures from these powers can lead to decisions being struck down by the courts.
Stephen Cragg is a barrister specialising in public law at Doughty Street Chambers
E-mail: s.cragg@doughtystreet.co.uk