Cavanagh
R (Cavanagh) v Health Service Commissioner [2005] EWCA Civ 1578
Parties and outcome
- Claimant
- Dr Nicholas Cavanagh, Dr Hashmukhray Bhatt and Frank Redmond (appellants in three joined appeals)
- Defendant
- Health Service Commissioner for England
- Outcome
- The claimants won: all three appeals were allowed. The court held that the report exceeded the Commissioner’s powers and was vitiated in its entirety.
Citations in this work
Dyer
18. We consider that our characterisation of the statutory powers and discretions is in line with what was said by this court in R v Parliamentary Comr for Administration, Ex p Dyer [1994] 1 WLR 621 , 626 e — g . For the commissioner, Nathalie Lieven seeks to add to it what Sedley J said in R v Parliamentary Comr for Administration, Ex p Balchin [1998] 1 PLR 1 , 15-that the Parliamentary Commissioner: “As an investigator… is not limited to the strict terms of the issue posed by the complaint.” This was said in relation to a factor (the intransigent attitude of a county council to the payment of compensation) which was directly raised by the complaint against central government over which alone the Parliamentary Commissioner had jurisdiction, and the factuality of which had been established by him. The point being made was that it was not necessary for him to have jurisdiction to inquire into the county council's behaviour in order to take it into account. In so far as the dictum may be thought to go any wider, it should be regarded as going no further than what is said in the previous paragraph of this judgment. It has also to be read in the light of what Auld J said in R v Northern and Yorkshire Regional Health Authority, Ex p Trivedi [1995] 1 WLR 961 , 971, albeit about a more confrontational disciplinary process: “The fact that the process is investigative and inquisitorial, rather than a form of litigation between the parties… does not mean that the medical service committee or the authority is entitled to investigate and make findings on matters not the subject of complaint.” The report
Cited by
- Kirkham (2006)
- Kirkham & Allt (2016)
- Kirkham (2017)
- Miller
47.The ombudsman submits that it is not necessary to see the actual letter of complaint but rather that the "ombudsman's formulation of the complaint she proposes to investigate" will suffice. I agree that it is necessary for the allegations to be set out with the particularity with which the ombudsman intends to investigate them with the corollary that the particularity must be sufficient for them to be answered in a meaningful and focused way. I do not agree with the implication of the ombudsman's submission that the ombudsman is entitled to re-craft the complaint. The ombudsman has no general power to investigate what she wants or to expand the complaint beyond its content: Cavanagh & Ors v Health Serviced Commissioner [2005] EWCA Civ 1578 at [16-18] and [38-39]. It would be better practice simply to disclose the complaint that has been made and identify that which is to be investigated. In this case, the lack of disclosure of the complaint letter or sufficient particulars of the allegations to accord with the duty of fairness was not remedied until the Draft Report was delivered to the doctors by the ombudsman.
- Harlow (2018)
- Kirkham & O’Loughlin (2020)
- Craig (9th edn)