A challenge to a report by the Health Service Commissioner into the provision of treatment for the complainant’s daughter, on grounds of procedural unfairness, irrationality and lack of jurisdiction, failed.
The Claimants (C, B and R) sought judicial review of a report by the Health Service Commissioner (D) relating to the treatment of R’s daughter (T). T was born in 1992 and since the age of two and a half, had experienced seizures. She had severe learning difficulties and a severe communication problem. She required constant support and supervision. She was under the care of C, a consultant paediatric neurologist. In 1995 T was diagnosed as having vitamin B12 disorders. C referred T’s case to B, an expert in the treatment of vitamin B12 disorders. At the end of 1995 the B12 unit run by B in a hospital was closed. In 2001 R made a complaint to the commissioner that since the closure he had experienced difficulty in obtaining treatment for T. The commissioner investigated the complaint and decided that it was unlikely that T actually had vitamin B12 disorder. He also decided that R was wrong to continue to insist that T had to be treated by a B12 expert and that C should have referred T to another consultant for a second opinion.
C submitted that report’s conclusions were invalidated by procedural unfairness and irrationality. He also submitted that the commissioner was wrong to have sent a copy of the report to the General Medical Council. B submitted that there was procedural unfairness because he had not been warned that he would be criticised and was not given an opportunity to comment on the conclusions. B also submitted that the commissioner had no jurisdiction to investigate matters of diagnosis prior to the amendment of the Health Service Commissioner’s Act (1993), in 1996, and had no power to investigate B, since he was not an NHS employee but an NHS independent provider. R submitted that the commissioner acted unlawfully in widening the scope of the investigation from R’s complaint about lack of treatment for T, to review the correctness of the B12 diagnosis disorder.
The Court held that:
(1) Since those subject to the complaint had each received the full report and had been given an opportunity to respond or comment, there was no procedural unfairness. The commissioner had been prepared to reconsider or amend the report following the claimant’s comments, but had been minded not to do so.
(2) The transitional provisions contained in the 1996 amendment to the Act, permitted the commissioner to investigate treatment (including diagnosis) before that date, and actions continuing after that date. The commissioner was investigating R’s complaint, not that of B. B’s challenges to the court’s jurisdiction failed.
(3) It was impossible for the commissioner to investigate the arrangements for T’s treatment without looking at the diagnosis.
(4) The commissioner was not acting irrationally in her criticisms of C for relying so heavily on B’s diagnosis and treatment, when C had no expertise in this area and had not sought a second opinion.
(5) The commissioner was not acting irrationally in referring the case of B to the GMC, although she should have reconsidered the referral in the case of C.