England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(MR JUSTICE TURNER)

		Royal Courts of Justice Strand London WC2 Friday, 14th May 2001

Friday, 11th May 2001

1. LORD JUSTICE ROBERT WALKER: This is an application by Mr Myles Megarry, who has appeared in person, seeking permission to appeal from an order of Turner J made in the Administrative Court on 24th January 2001. That order refused Mr Megarry leave to apply for judicial review of a decision made on 20th July 2000 by the Health Service Ombudsman, permission having previously been refused on paper on 30th November 2000.
2. The official title of the Health Service Ombudsman is the Health Service Commissioner for England; but it is convenient to refer to him as the Ombudsman. His office was established by the Health Service Commissioners Act 1993 ("the 1993 Act"). Originally, his jurisdiction was limited to alleged failures or maladministration by a health service body as defined in section 2 of the 1993 Act. Those bodies did not include general practitioners. However, the scope of the Ombudsman's jurisdiction was extended by the Health Service Commissioners (Amendment) Act 1996 ("the 1996 Act") so as to cover general practitioners, who were included in the expression "family health service providers": see section 2A of the 1993 Act inserted by the 1996 Act.
3. By the Health Service Commissioners (Amendment) Act 1996 (Commencement) Order 1996 Statutory Instrument No.970, it was provided that the 1996 Act should come into force on 1st April 1996, and that section 2(2) (among other provisions) should apply in relation to -

"(a) action beginning on or after 1 April 1996

(b) action beginning before that date if it can reasonably be said that part of the same action occurs on or after that date."

4. In those circumstances the Ombudsman may (under section 3(1A) of the 1993 Act as amended) investigate a complaint by a person that he or she has suffered injustice or hardship sustained in consequence of an alleged failure by a family health service provider.
5. The background to this matter is that at the beginning of 1996 Mr Megarry was a student at the University of Sheffield studying law. He had joined the university in October 1995. On 30th January he made an appointment by telephone to see a doctor at the Student Health Service at 2 Claremont Place. That appointment was for 1st February. Mr Megarry had not as it happens previously registered at the Student Health Service and he called and completed a registration form an 31st January.
6. On the morning of February he spoke to his course director about his absence from seminars on the two previous days and there was some discussion between them. In the course of that discussion he asked his course director to contact a relative of his (Mr Megarry's) who is or was a medical director at a psychiatric clinic in London. The upshot was that Mr Megarry was seen by the most senior doctor at the Student Health Centre, Dr Osborne, at 2.00pm on that day (ahead of the appointment time). Mr Megarry was on the same day admitted to a clinic for psychiatric assessment. He remained there for 14 days.
7. Mr Megarry has various complaints about this consultation including the fact that he was not given a physical examination. He also complained of what he called "a lapse in confidentiality". He took up these complaints, first with the Sheffield Health Authority and then with the Health Service Ombudsman.
8. I need not go through all the events of the next four years. In fact, according to Mr Megarry's helpful chronology, nothing significant happened between April 1996 and September 1999. Ultimately on 5th June 2000 Miss Brenda Jackson (who as convenor at the health authority had the authority to direct an Independent Review) wrote to Mr Megarry communicating her decision that it would not be appropriate to set aside the normal time limit for the investigation of complaints. She wrote:

"As you will appreciate, the substance of your complaint against Dr Osborne relates to events which occurred over four years ago. Complaints should ordinarily be made within six months of the event(s) or within six months of becoming aware of a cause for complaint, provided that is within twelve months of the event(s). It is evident from the documentation you have submitted, that you were aware of what you considered to be a cause for complaint at 1 February 1996 but that you did not wish to complain about Dr Osborne's actions at that time.

Evidently, as a result of difficulties you have experienced more recently involving Community Health Sheffield, you elected to include the actions of Dr Osborne as a matter of concern in the complaint you registered with Community Health Sheffield in January 2000. I note that Dr Osborne has sought to assist you in this matter by responding to your concerns outside the recognised time limits. However, I do not consider it would be appropriate to set aside the time limits under the Independent Review process due to the length of time which has elapsed and have therefore determined that this matter should not be considered further."

9. Miss Jackson told Mr Megarry of his right to go to the Ombudsman and Mr Megarry promptly exercised that right.
10. On 20th July the Ombudsman's investigating officer wrote to Mr Megarry. Apart from an introductory paragraph his letter was in the following terms:

"I have considered the papers that you sent me very carefully and I have taken advice from one of the Ombudsman's professional advisers. I have decided not to investigate your complaint for the following reasons.

First, I have considered whether your complaint about Dr Osborne is within the jurisdiction of the Ombudsman. You are aware that the Ombudsman cannot investigate complaints about the care and treatment provided by a doctor, nurse or other trained professional where the matters complained about occurred before 1 April 1996. The Ombudsman is precluded by law from investigating such matters and has no discretion in this. I have noted your comments on this, however, I am advised that the matters complained about concern care and treatment and the complaint against Dr Osborne is confined to the events of 1 February 1996. This is outside the jurisdiction of the Ombudsman and we cannot investigate this aspect of your complaint.

I have gone on to consider whether the convenor's decision to refuse an Independent Review Panel was maladministrative and have concluded that it was not. The convener took appropriate advice and has considered your complaint thoroughly. I therefore see no grounds for questioning her decision.

The role of the convenor is to consider whether the Health Authority can take any further action to satisfy the complainant, whether the Health Authority has taken all practical action to help resolve the complaint and whether establishing a panel would add any further value to the process. In view of this, I consider that her decision was reasonable.

I have also concluded that an investigation by the Ombudsman would provide nothing further to the explanations and apologies that you have received through your own efforts.

For the above reasons, I see no grounds for investigation. I hope that you will take some assurance from the fact that your complaint has been considered very carefully and thoroughly by this office."

11. That is the decision in respect of which Mr Megarry seeks judicial review. Maurice Kay J (on paper) and Turner J (in court) successively refused the application for judicial review. Turner J said at the end of his judgment:

"The simple truth is that there has been an exhaustive, if not excessive, investigation of the applicant's manifold complaints by the Health Authority in Sheffield. Those matters were investigated, and it was, in a sense, the decision of the convener not to set up an inquiry which has led the application to his present position. As the Ombudsman stated in his decision letter, there was no possible error in the convener's decision. It follows that this renewed application must be refused."

12. Mr Megarry has put before the court written grounds of appeal annexed to his appellant's notice, and a skeleton argument running to 76 paragraphs. Mr Megarry has also put in a further skeleton argument of 103 paragraphs seeking to amend his appellant's notice to take a further point on section 6 of the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights.
13. I have very carefully considered these extensive written submissions and I have also listened attentively to Mr Megarry's oral submissions this morning.
14. On the crucial point as to whether the Ombudsman had any jurisdiction to investigate the complaint against Mr Osborne Mr Megarry has submitted that the sequence in which his complaints were made somehow has the effect of building a bridge so as to enable him to go back to February 1996 despite the amended legislation coming into force only on 1st April 1996. I have listened attentively to those submissions and have considered them, but I cannot see any validity in the point. Although Mr Megarry's submissions have been most carefully prepared and admirably presented they do not persuade me either with or without reference to Article 8 of the European Convention on Human Rights that Turner J made any mistake of law or erred in principle in concluding that he must dismiss the application.
15. It seems to me that a further appeal would be hopeless and I dismiss this application.
(Application dismissed; no order for costs).