Case Comment: In the matter of an application by JR55 for Judicial Review (Northern Ireland)  UKSC 22
15 Thursday Sep 2016
This case concerns the alleged maladministration of a GP’s practice in Northern Ireland and its implications on the correct interpretation of the powers of Northern Ireland’s Commissioner of Complaints. A
patient, clinically diagnosed as being asymptomatic requested his GP to have his heart checked. The GP referred the patient for an
electrocardiogram test in July 2008. The ECG reported negative for ischemic heart disease, and as a result the GP took no further action. In December 2008, the patient attended the practice again to complain about further chest pains, and was referred to a chest pain clinic. The clinic wrote to the practice outlining reasons for not giving the patient an appointment. The patient attended the practice once again in January 2009 and was seen to by a locum GP, where he inquired about his lack of appointment at the clinic. The locum GP referred the patient for another ECG scan, unfortunately, the patient died of a myocardial infarction later that day.
Following an investigation by the Northern Ireland Commissioner of Complaints, it was decided that the practice had failed to provide a reasonable level of care and treatment and was therefore guilty of maladministration. The GP was ordered to pay compensation totalling £10,000 to the widowed wife of the patient.
The GP refused to pay and challenged the Commissioner’s decision. The Commissioner determined to lay a special report in respect of the matter before the Northern Ireland Assembly.
Decision at first instance
Initially the courts accepted the argument put forward by the Commissioner, and concluded that the non-binding recommendation of a consolatory payment was an exercise of discretion on the part of the Commissioner. The Commissioner was entitled to exercise the power under Article 11(b)(ii) ‘to state what action should in his opinion be taken to effect a fair settlement’. Applying the decision in Bolton Metropolitan District Council v Secretary of State for the Environment  71 P & CR 309 Treacy J accepted that the reasoning provided by the Commissioner was both adequate and intelligible. The Commissioner’s decision was reached on the basis of a detailed investigative report which outlined findings of maladministration.
Northern Ireland Court of Appeal
The Northern Ireland Court of Appeal addressed two issues: firstly, whether the Commissioner has the power to recommend payment of money in respect of findings that were identified during the course of the investigation and, secondly, if the Commissioner had the power, in the event that the payment was not made to make a special report drawing their attention to that fact.
The court quashed the Commissioner’s recommendation and stated that ‘such a power would have to be found in express wording or by necessary implication from the relevant legislation’ [paragraph 31]. The lack of clear reference outlining the powers of the Ombudsman makes the decision to impose a compensatory remedy of £10,000 unlawful.
In addition, the Court of Appeal interpreted the general power of the Ombudsman’s as ‘may from time to time lay such other reports before the Assembly as he thinks fit” (quoting Article 19 of the Commissioner for Complaints (Northern Ireland) Order 1996 (‘1996 Order’). The Court ruled that because there was no power to state that such a report could be used to highlight non-compliance with the order, such an attempt to raise a report with the Assembly did not fall within the ambit of the Commissioner’s powers.
The Northern Ireland Court of Appeal found that the Commissioner’s resolution in recommending that a GP pay a consolatory payment of £10,000 to the complainant was an action that does not fall within the powers of the ombudsman. Not only did he not have the power to make such a recommendation, but he had also not reasoned their decision adequately.
Supreme Court decision
The Supreme Court unanimously dismissed the appeal by the Complaints Commissioner, holding that the Commissioner had a) no power to recommend payment of a money sum based on the Articles found in the 1996 Order; b) the Commissioner had no power to make a special report drawing the attention of the legislature to such a person’s failure to comply with recommendations.
Firstly, the Supreme Court quoted Articles 9(3) and 9(4) of 1996 Order. Under Article 9(3), the Commissioner may not carry out an investigation in respect of which the complainant has a remedy to proceed in a court of law. Subject to Article 9(4), which provides an expectation to the restriction, stating that an investigation can be conducted if the Commissioner is satisfied that in particular circumstances it is not reasonable to expect the complainant to seek a remedy via courts. The widow had such a remedy but was not seeking monetary redress. Nonetheless, the courts stated that it could not be proper for the Commissioner to recommend a monetary redress as compensation if the Commissioner was aware that the widow was not seeking monetary compensation.
Furthermore, the Supreme Court stated that Complaints Commissioner has no power to make a special report in default of payment. Under Article 29 of the 1996 Order, the Assembly is concerned with the presentation of Annual reports and not individual reports concerning cases of non-compliance. The Courts ruled that the Commissioner has no powers of compulsion and almost limited powers to use investigative reports as mean of enforcement.
Lord Sumption expressed further concerns about the basis on which the figure of £10,000 had been reached. He commented that it appeared to have been ‘plucked out of the air’ and had no substantial or coherent explanation.
The Supreme Court acknowledged that, following the enactment of the Public Services Ombudsman Act (Northern Ireland) 2016, the conclusion in this case became academic as the Commissioner’s role will be abolished. Nonetheless, the case provides some useful guidance around the judicial interpretation of the Ombudsman’s schemes.