Stephen Atwood v The Health Service Commissioner [2008] EWHC 2315 (Admin)

This case, bought by A (a consultant gastro-intestinal surgeon), was for a judicial review of the Health Service Commissioner’s findings relating to a complaint in respect of the treatment afforded P. A had preformed a cardio-oesophagectomy on P, but a few weeks after his discharge from hospital he had died. P’s daughter complained to the commissioner, who produced a subsequent report into P’s inpatient and post discharge treatment. Some of the findings within this report were critical of A’s clinical judgment. A’s challenge was on the basis that the Commissioner should have applied the Bolam test to questions arising about A’s clinical judgment and, secondly, he felt the commissioner had made some erroneous factual conclusions.

The Court held that the role of the commissioner as set out in s.3(1) of the Health Service Commissioners Act 1993 was to adjudicate over complaints and provide redress through their findings and recommendations. It was not the intention of Parliament to create a parallel jurisdiction to the courts and tribunals, nor did the Court believe that the Acts governing the commissioner’s role expect the commissioner to apply the same legal concepts as would be expected of the Courts, for example the concepts of “maladministration” and “injustice” under the Health Service Commissioners Act 1993 were different from ideas of illegality and loss in common law and a “failure of service” would not necessarily equate to the levels of culpability required for a negligence action to succeed. Therefore she was not required to apply the Bolam test to questions of clinical negligence.

The Court held that, as a matter of principle, the commissioner should determine what standard to apply before making any finding of failure, but that a reviewing court would not interfere with that standard unless it was unreasonable. In this instance the commissioner had indicated to the parties that she (and her predecessors) would apply a standard indistinguishable from the Bolam test when determining whether clinical judgment was reasonable. The fact the she had applied a different standard when looking at A’s management of P following his discharge amount to misdirection because this was an issue of clinical judgment.  Notwithstanding the fact the commissioner had applied the wrong standard of proof to that particular issue, the court held that much of the report was concerned with more general criticisms and that the factual conclusions reached were reasonable when reading in the light of the assessor’s report and the evidence, including that taken from exchanges with A’s solicitors.

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