UKSC dismisses appeal by NI Commissioner for Complaints over lack of power to recommend consolatory payment

About this case:

• Judgment:
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Judges Lord Neuberger, Lord Clarke, Lord Sumption, Lord Carnwath, and Lord Toulson held the Commissioner had (i) no power to recommend the payment of a money sum against an individual who was not a public authority in an investigation under article 8 of the Commissioner for Complaints (Northern Ireland) Order 1996 and (ii) no power to make a special report drawing the attention of the legislature to such a person’s failure to comply with a recommendation.

The case concerned a patient who, clinically asymptomatic at the time, requested the respondent GP (JR55) to refer him to have his heart checked. The GP referred him for an electrocardiogram (ECG) test in July 2008. The test reported negative for ischaemic heart disease although it was noted that the patient had poor exercise capacity and was hypertensive throughout the test.

The patient made further complaints of chest pain and the GP referred him to a chest pain clinic. The clinic wrote to the GP on 20 December 2008 outlining reasons for not giving the patient an appointment.

The patient attended the practice again on 6 January 2009 and was seen by a locum GP. The patient enquired why he had not received an appointment. The locum GP referred the patient for another ECG but the patient died of a heart attack later that day.

Following an investigation, the Commissioner made findings of maladministration and recommended that the GP make a consolatory payment of £10,000 to the patient’s widow.

The Commissioner indicated that if the GP declined to make the payment, he would lay a special report about the matter before the Northern Ireland Assembly and the GP challenged the Commissioner’s ability to do so.

The Commissioner’s recommendation was upheld at first instance but quashed in the Court of Appeal by a majority.