JR55, Re Application for Judicial Review (Northern Ireland) [2016] UKSC 22

A widow complained to the Northern Ireland Complaints Commissioner about her late husband's GP care. The Commissioner recommended the GP pay £10,000. The Supreme Court held the Commissioner had no power to recommend monetary redress against a private practitioner or issue a special report on non-compliance.

Facts

The respondent was a general medical practitioner in sole practice in Northern Ireland, providing services to the Health and Social Care Board under Part VI of the Health and Social Services (Northern Ireland) Order 1972. The complainant, Mrs R, was the widow of one of his patients who died of a myocardial infarction on 6 January 2009.

Over the preceding eight months, R had attended the surgery on several occasions. A treadmill test in July 2008 was negative for ischaemic heart disease but no follow-up action was taken when later complaints of chest pain arose. A referral to a Rapid Access Chest Pain Clinic was declined; the clinic’s report suggesting outpatient referral was not reviewed promptly because the respondent was on holiday and the locum did not see it as urgent. R died the day he returned to the surgery to enquire about the referral.

Mrs R complained to the Northern Ireland Commissioner for Complaints, indicating she was not seeking compensation but wanted to understand what had happened. The Commissioner investigated under article 8 of the Commissioner for Complaints (Northern Ireland) Order 1996, finding a series of administrative failings and inappropriate post-death conduct, though making no finding that these failings caused the death. He recommended the practice pay Mrs R £10,000 and indicated he would issue a ‘special report’ to the Northern Ireland Assembly if payment was not made. The GP apologised and altered practice procedures but, on legal advice, refused to pay.

Issues

The Supreme Court had to determine: (i) whether the Complaints Commissioner had power under the 1996 Order to recommend the payment of a money sum by a private medical practitioner investigated under article 8; and (ii) whether, in the event of non-payment, he had power to make a special report to the Northern Ireland Assembly drawing attention to the failure to comply.

Arguments

The Commissioner argued that his recommendations derived efficacy not from legal enforceability but from publicity, relying on commentary in Wade and Forsyth, Administrative Law, regarding the leverage provided by public reports. He contended that article 19 of the 1996 Order, empowering him to lay reports before the Assembly ‘as he thinks fit’, supported a power to issue a special report on non-compliance.

The respondent argued that he was not a public body, had no public or private law duty to comply, and that the 1996 Order’s enforcement mechanisms (articles 16 and 17) were deliberately limited to investigations under article 7 against public bodies listed in Schedule 2.

Judgment

Lord Sumption (with whom Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Toulson agreed) dismissed the appeal.

Article 9(3) and (4): a short answer on the facts

Under article 9(3), the Commissioner cannot investigate matters where the complainant has a remedy in court, subject to article 9(4). Following R v Commissioner for Local Administration, Ex p Croydon London Borough Council [1989] 1 All ER 1033, the test assumes the complaint to be well-founded. The investigation was properly undertaken under article 9(4) because Mrs R did not seek financial relief. However, if that was the only basis for undertaking the investigation, it was not proper for the Commissioner subsequently to recommend a money payment and threaten a report on non-payment.

The fundamental question: no power to recommend monetary redress against a private practitioner

The Court drew a clear distinction between public bodies (investigated under article 7) and private individuals such as GPs providing services to the NHS under contract (investigated under article 8). Articles 16 (compensation via county court) and 17 (Attorney General’s injunction) are limited to article 7 investigations against Schedule 2 public bodies. There is no statutory mechanism for enforcing monetary recommendations against private contractors.

Lord Sumption observed that a private individual has no means of challenging the Commissioner’s findings before a court, other than limited judicial review, whereas a public body can fully contest the recommendation in article 16 proceedings. He could see no rational reason why private individuals should have a more limited right of challenge than public bodies, and concluded the draftsman must have assumed the Commissioner would not make recommendations against private individuals which had no legal effect.

Under article 11, where the Commissioner operates the settlement procedure and it fails, he may recommend a monetary payment to bring about fair settlement; that power applies irrespective of whether the body investigated is public or private. However, in this case the Commissioner never invoked the settlement procedure.

No power to make a special report

The absence of a special report power for the Complaints Commissioner was deliberate, reflecting a constitutional difference. The Assembly Ombudsman, like the UK Parliamentary Commissioner, is an officer of the legislature with an express special report power (article 17(2) of the Ombudsman (Northern Ireland) Order 1996). The Complaints Commissioner, by contrast, receives complaints directly from the public and reports to the complainant and bodies investigated; his recommendations are enforceable through articles 16 and 17 against public bodies only.

Article 19, empowering annual and other general reports on the performance of his functions, does not authorise special reports on individual cases of non-compliance. To suggest otherwise would confuse the Commissioner’s two legislatively distinct roles.

Rationality of the £10,000 recommendation

Although the issue did not arise given the conclusion on powers, Lord Sumption observed that the recommendation lacked any rational basis: the report did not explain how the figure was arrived at, did not identify any loss suffered, and several failings were found to have made no difference to the outcome. He stated that the figure had ‘simply been plucked out of the air’.

Implications

The decision clarifies the limits of the Northern Ireland Commissioner for Complaints’ powers under the 1996 Order. In particular: (i) the Commissioner has no general power to recommend monetary redress against private individuals (such as GPs) investigated under article 8, since the statutory enforcement mechanisms in articles 16 and 17 apply only to public bodies under article 7; (ii) the Commissioner may, however, recommend a monetary payment as part of a fair settlement under article 11 if the settlement procedure is operated; (iii) the Commissioner has no power to issue a special report to the legislature on non-compliance, that power being deliberately reserved to the Assembly Ombudsman whose constitutional role differs.

The judgment emphasises the distinction between public and private bodies in the ombudsman framework and the corresponding difference in enforcement mechanisms. It also reinforces that ombudsman recommendations, where validly made, must still be rational and adequately explained.

The practical impact is limited by the Public Services Ombudsman Act (Northern Ireland) 2016, which from 1 April 2016 abolished both offices and replaced them with the Northern Ireland Public Services Ombudsman, whose powers (including a wider power to issue special reports under section 46(2)) are different. Nevertheless, the case affects a number of completed reports and outstanding recommendations under the 1996 regime that fall to be dealt with under the transitional provisions, and it stands as authoritative guidance on the careful statutory construction required where ombudsman schemes appear similar but differ in constitutional foundation.

Verdict: Appeal dismissed. The Complaints Commissioner had no power under the Commissioner for Complaints (Northern Ireland) Order 1996 to recommend payment of a money sum by a private medical practitioner investigated under article 8, nor to issue a special report to the legislature on the practitioner’s failure to comply with such a recommendation.

Source: JR55, Re Application for Judicial Review (Northern Ireland) [2016] UKSC 22