Application by JR55 for Judicial Review (Northern Ireland)  UKSC 22
The recommendations of an ombudsman are technically legally
ineffective. At most, their recommendations are legally enforceable
against public bodies bound by their public law duty not to ignore
them without good reason. So said the Supreme Court in the recent
judicial review application by JR55 (Northern Ireland).
In that case, the Complaints Commissioner in Northern Ireland
had conducted an investigation into the death of the
complainant's husband, "R". R, who was clinically
asymptomatic at the time, had attended his GP to request a referral
to have his heart checked. His GP referred him for an ECG, and
thereafter, to the chest pain clinic. However, the clinic declined
to give R an appointment and his GP failed to inform him. R
attended his GP again to enquire why an appointment had not been
arranged and was referred for another ECG. However, he sadly died
later that day of a myocardial infarction.
Following investigations, the complaints commissioner made a
finding of maladministration on the part of the GP practice. One of
the recommendations in the commissioner's report was that
"the practice should pay the complainant £10,000 in
respect of the clearly identified failings in the care provided to
R". When, after taking legal advice, the GP practice declined
to pay the money, the commissioner threatened to issue a
"special report" to the Northern Ireland legislature
reporting the practice's failure to comply.
The main questions for the Supreme Court to address were: (1)
whether the commissioner has power to recommend payment of money to
a complainant from a private body; and (2) whether, in the event
that the sum was not paid, the commissioner had the power to make a
"special report" to the legislature.
Both questions were answered unanimously in the negative.
Recommending payment in this case was improper. The only basis on
which the commissioner could undertake the investigation at all was
that R's widow did not seek any money. In any case, while the
legislation allowed the commissioner to recommend payment out of
public funds, recommending payment from a private practice's
"own pocket" was an entirely different matter. The court
emphasised that the public duty on a public body not to reject the
commissioner's recommendations for no good reason could not
apply to private bodies. Since it was inconceivable that those
drafting the legislation would allow the commissioner to make
recommendations against private bodies with absolutely no legal
effect, the commissioner did not have the power to order the GP
practice to make a payment.
The court also held that the power to issue a "special
report" was confined to the Assembly Ombudsman for Northern
Ireland, who had an entirely different constitutional status. The
commissioner's duties were to report to the complainant and to
the bodies whose conduct was at issue, not the parliament.
This is a common sense decision which ensures that an ombudsman
is prevented from usurping the role of the court in awarding
compensation, and threatening enforcement by publicity. While the
decision relates to the now defunct Northern Irish legislation, the
judgment of the Supreme Court is likely to be highly persuasive in
other UK jurisdictions which share a similar legislative
After studying bioengineering and completing a PhD in the San Francisco Bay Area and a two-year postdoctoral research fellowship in London, Mark has spent the past four years analysing global health policy.
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