On 22 October the Administrative Court handed down judgment in the case of Dr Miller and Dr Howarth v Parliamentary Health Service Ombudsman. They sought judicial review of a PHSO report which upheld a complaint made by a Mrs Pollard about the medical treatment provided to her late husband.
They challenged the report on six grounds. The most important one from our readers’ perspective is that it was wrong or unlawful for the PHSO to have recommended payment of compensation where the level of compensation reflected that available in court actions. The PHSO had recommended that £15,000 be paid to Mrs Pollard in recognition of the fact that, on the balance of probabilities, her husband’s death could have been avoided and in recognition of the distress caused to her.
The two doctors had argued that the Health Service Commissioners Act 1993 excluded recommendations for payment of financial compensation to remedy injustice but they abandoned that argument. They then argued that it was wrong and unfair to recommend levels of financial redress equivalent to the level of damages appropriate in civil actions where the PHSO did not provide safeguards available in civil actions and where the PHSO did not adopt measurable standards for determining liability.
The court disagreed. They decided that the PHSO was entitled to form a view as to what action was necessary to remedy the injustice found, and if the appropriate action was payment of money as financial redress, then it was implicit in the Health Service Commissioners Act that the PHSO could recommend that. The court also decided that the approach adopted by the PHSO to calculating the amount was not unfair or unlawful even though the methods of calculating the loss may be similar to those used in civil actions for negligence.
Jill Mason, Partner
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