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New ruling on the service failure test in clinical cases

Healthcare Regulatory Partner Simon Turner examines Weightmans’ recent Court of Appeal case striking down the test applied by the Health Service…

Miller & Anor v Health Service Commissioner for England [2018] EWCA Civ 14

Healthcare Regulatory Partner Simon Turner examines Weightmans’ recent Court of Appeal case striking down the test applied by the Health Service Commissioner in healthcare cases.

In a landmark decision, the Court of Appeal has struck down the standard/measure the Health Service Commissioner for England (‘the Commissioner’) applied when determining ‘service failure’ in a clinical case as ‘unlawful’. The judgment in the Miller case, handed down last week, effectively overturns the approach the Commissioner has generally taken when exercising its power to investigate ‘the exercise of clinical judgment’ by healthcare professionals pursuant to the Health Service Commissioner’s Act 1993 as amended.

The case, jointly supported by the Medical Protection Society and Medical Defence Union on behalf of two GPs, criticised in a report by the Commissioner following the death of a patient, raised a number of fundamental challenges to the Commissioner’s processes and analysis.

In a powerfully worded judgment, lead judge Gloster LJ Vice President of the Court of Appeal, described the standard the Commissioner applied in the case (its usual approach in such cases) as ‘beguilingly simple, but incoherent’, concluding it was ‘unreasonable and irrational and accordingly unlawful’. The court upheld the GPs’ appeal and quashed the Commissioner’s decision to investigate and the report, which had included a recommendation for compensatory payment.

The decision reflects concerns long-held by those involved in such cases that there is insufficient clarity as to the standard against which their actions are being measured and determined as service failures.

The Health Service Commissioner is in effect the appellate body for NHS complaints, with a wide discretion to investigate cases brought to them by individuals regarding the service/care received from health service bodies, including NHS Trusts, GPs and General Dental Practitioners.

Last year it accepted in excess of 3,700 cases for investigation. A 1996 amendment to its Act empowered the Commissioner to investigate ‘the exercise of clinical judgment’. Published statements from the then Commissioner preceding the amendment indicated the standard against which health service bodies/ practitioners would be held as that of ‘the reasonable and responsible clinician’ ; akin to the tests set out in the famous cases of Bolam / Bolitho, long-recognised in clinical negligence cases.

In R(Attwood) v Health Service Commissioner [2008] EWHC 2315 a move away from that standard was challenged. In a judgment, which nevertheless opened the doors to a change of approach, the court found that the 1993 Act did not bind the Ombudsman to Bolam/Bolitho, but provided the Commissioner with a wide discretion as to the standard applied, if clear and publically articulated. READ FULL ARTICLE