Kay

R (Kay) v Health Service Commissioner [2009] EWCA Civ 732

Case report (vLex)

Locate in the network

Parties and outcome

Claimant

Kay, acting through her father Mr Kay as litigation friend

Defendant

Health Service Commissioner

Interested party

The NHS trust responsible for Kay’s care (referred to as “the Trust” in this judgment)

Outcome

The Commissioner prevailed at this stage: Kay’s renewed application for permission to appeal was refused.

Cited by

• Kirkham & Allt (2016)
• Miller

  Paragraph 53

  53.The utility of a draft report procedure has been commented upon in decisions of this court which have concluded that there is due process and fairness in the same: see, for example, R (Bradley) v Secretary of State for Work and Pensions [2009] QB 114 at [58] and R (Kay) v Health Service Commissioner [2009] EWCA Civ 732 per Sullivan LJ, Senior President at [8]. Furthermore, the ombudsman's process as described in her letters inviting observations from the appellants was intended to be 'iterative'. The doctors could either comment as the investigation went along or at the stage of a draft report or conceivably both. Had they not been encouraged to be reticent by the ombudsman's representative, they could have commented earlier and caused the ombudsman to engage with their responses before drafting her report.