Factual background

A patient’s widow complained to the Health Service Commissioner for England (HSCE) regarding care provided to her late husband by one of two GPs.

HSCE requested copies of the patient’s records and these were provided by the practice. HSCE then carried out an assessment of the complaint, decided to investigate it, and wrote to the GP complained of seeking comments, but without disclosing the complaint or the assessment already made.

The complainant then expanded the scope of her complaint to HSCE by including the second GP in it. The practice and the two GPs were notified accordingly, again without either the original or expanded complaint being disclosed. HSCE then sought advice from a GP adviser and a surgical adviser, on the basis of which it compiled a draft report upholding the complaint and calling on the GPs to acknowledge failings, to apologise, and to compensate the complainant.

The draft report was then sent to the GPs. They sought assistance from their medical defence organisations, who obtained disclosure of the reports from the HSCE GP and surgical adviser, and submitted detailed comments to HSCE on behalf of the GPs with the benefit of expert advice they had obtained, asserting that the care provided by each GP was of an appropriate standard.

HSCE subsequently issued a final report in similar terms to the previous draft.

The legal process

The GPs applied to the Administrative Court seeking a judicial review of the HSCE’s decision. Their application was dismissed at first instance, but upheld by the Court of Appeal. It found that the HSCE had failed to investigate the complaint in accordance with the statute setting out its powers, and in doing so had also breached a common law duty to investigate fairly. The HSCE’s decision was therefore unlawful, and it was quashed.

Particular findings of the Court of Appeal

  • Details of the complaint should have been disclosed to the GPs by HSCE before the decision to investigate was made
  • The GP and surgical advisers’ advice received by HSCE should have been disclosed to the GPs with the draft report
  • The HSCE had in fact pre-determined the outcome of its investigation
  • The standard by which the HSCE judges alleged failures in the exercise of clinical judgment was ‘beguilingly simple, but incoherent’ in that it failed to take into account valid differences in professional opinion and therefore amounted to a counsel of perfection rather than a yardstick of reasonable or responsible practice

Commentary

The judgment comprises a powerful criticism of operating practices within the Health Service Commissioner’s office as revealed in the particular investigation, and can be expected to lead to significant changes in the process it follows in investigating complaints.