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OUTER HOUSE, COURT OF SESSION
[2021] CSOH 86
P127/21
OPINION OF LORD HARROWER
In the cause
Y
Petitioner
for
JUDICIAL REVIEW of a decision of Healthcare Improvement Scotland
Pursuer: Walker QC, Byrne; Harper MacLeod LLP
Defender: Gardiner; NHS Scotland Central Legal Office
18 August 2021
Introduction
[1]
The petitioner is a hospice. The respondent is Healthcare Improvement Scotland, a
public body established by section 10A of the National Health Service (Scotland) Act 1978, in
order to regulate health care services in Scotland, including independent health care services
of the sort provided by the petitioner. The petitioner seeks judicial review of a decision by
the respondent said to be contained in a draft report, which the respondent intends to
publish or at least make publicly available. The draft report refers to a complaint made
against the petitioner. The central issue in this case is whether, as a result of representations
made by the respondent at a meeting following that complaint, the petitioner had a
2
legitimate expectation that the complaint would not be published by the respondent. For
reasons given at the end of this opinion, I have acceded to the petitioner's motion to
anonymise in this opinion all references to the hospice.
Background
[2]
On 20 March 2019, a team of the respondent's inspectors visited the hospice operated
by the petitioner ("inspection 1"). The purpose of the visit was to investigate a complaint
(the "complaint"). At the end of the visit, the inspectors met with representatives of the
petitioner. Minutes of that meeting were produced by the petitioner in these proceedings,
and although they had not previously been seen by the respondent, their accuracy was not
disputed. The minutes record that the following exchange took place, in which "EM" and
"TB" represented the petitioner and respondent respectively:
"EM: Finally, in terms of when you produce your report and various letters,
obviously we have never been through anything like this before so what ends up in
the public domain?
TB: At the moment, nothing. We have a Consultation out at the moment and part of
this is to, in the future, post complaint investigations and outcomes online. From the
responses we have received so far to the consultation, there are no concerns about
posting online. We are also fleshing out the review process because in the future
complainants and service provider will have the right to a review process. But it will
be 1 June before we go live. It would only be the family who would go to the public
domain. You will both see identical letters and if there is something factually
inaccurate let us know. But we will not be putting anything in the public domain .
EM: Okay. Thank you".
[3]
In March 2019 the respondent partially upheld the complaint. It imposed a
requirement on the petitioner to involve individuals holding a welfare power of attorney in
discussions relating to the care of patients. It also made a number of recommendations
relating to room-temperature control, the drawing up of tools for the assessment of pain,
3
nutrition and pressure ulcers, and the provision of information about the petitioner's
complaints policy. The respondent's decision partially upholding the complaint was not
published.
[4]
Between 31 July 2019 and 1 August 2019, the respondent carried out an unannounced
inspection of the petitioner's hospice ("inspection 2"). The inspection investigated action
taken by the petitioner to meet the requirement and recommendations issued following
inspection 1. The respondent issued the petitioner with a draft report (the 2019 report)
which referred to the complaint and noted that the requirement and one of the
recommendations had not been met. The 2019 report has not been published pending the
outcome of separate judicial review proceedings brought by the petitioner . I was informed
that the grounds of review in these other proceedings did not initially include reference to
any unfairness on the part of the respondent regarding the legitimate expectation that the
petitioner now claims in the present proceedings to have acquired in respect of the
complaint or inspection 1. However, a ground reflecting that concern was included by an
amendment to the petition.
[5]
On 9 December 2020 the respondent carried out a further, announced, inspection of
the hospice ("inspection 3"). The purpose of the inspection, as expressed by the respondent
in an email sent on 26 November 2020 to the petitioner, was "to make sure the service [was]
delivering care safely to patients, in light of the COVID-19 pandemic". On 27 January 2021,
the respondent issued to the petitioner its draft report in relation to inspection 3 (the "2021
report"). The 2021 report referred to the complaint and noted that the requirement and all of
the recommendations had been met. The 2021 report is the subject of the present judicial
review proceedings.
4
Law and policy relating to complaints
[6]
Before turning to the parties' arguments, it is convenient to summarise certain
aspects of the law as well as the respondent's policy relating to inspections into complaints
about independent health care service providers.
[7]
The statutory basis for the respondent lies in section 10A of the National Health
Service (Scotland) Act 1978. In terms of the 1978 Act, the respondent must exercise its
functions in accordance with certain principles, which include the protection and
enhancement of the safety and wellbeing of everyone who uses independent health care
services (section 10B). It must "provide information to the public about the availability and
quality of independent health care services" (section 10E(1)). The respondent may inspect
any independent health care service, with a view to reviewing and evaluating the
effectiveness of the provision of the services which are the subject of inspection (section 10J).
Where an inspection has been completed, it must then "prepare a report on the matters
inspected" (section 10N(1)(a)). It must make reports available on request and publicise them
as it considers appropriate (section 10N(3)). It must establish a procedure by which a
person, or someone acting on his behalf, "may make complaints (or other representations) in
relation to the provision to the person of an independent health care service or about the
provision of an independent health care service generally" (section 10Z8).
[8]
The respondent's policy in relation to inspections was set out in a document titled,
Independent Healthcare Regulation: Inspection Methodology. It was published in August 2018. It
stated that all inspection reports were published on its website, and that inspections were
useful for "people who use or are choosing services", as well as "organisations that use or
buy independent healthcare services". "Inspection planning" took place every year, and
used intelligence from various sources, including previous inspections and complaints.
5
During an inspection, the respondent would "confirm requirements and recommendations
made at previous inspections ... and resulting from complaints". The methodology
included a timetable within which draft reports would be finalised to ensure their
publication no later than 8 weeks following inspection.
The petitioner's argument
[9]
Senior counsel for the petitioner founded on the representations made on behalf of
the respondent at the meeting in March 2019, and on the respondent's conduct in not
publishing anything regarding the complaint between March 2019 and its 2019 report . Both
the express representations and consequential conduct of the respondent separately and
cumulatively established a legitimate expectation on the part of the petitioner that any
matter concerning the complaint would not be placed in the public domain .
[10]
While detrimental reliance was not necessary in order to establish a legitimate
expectation, nevertheless there was detrimental reliance in this case. The petitioner's affairs
had been disturbed. At the time of inspection 1, the respondent had not instituted any
procedure by which the upholding of a complaint or the manner in which it had been dealt
with could be challenged by the petitioner. Its only remedy lay in proceedings for judicial
review. In reliance on the respondent's representation, the petitioner had lost the chance to
bring judicial review proceedings.
[11]
There was no good reason to allow the respondent to "resile" from the undertaking.
The principle of good administration required the expectation to be preserved. The
expectation and its legitimacy had strengthened with the passage of time. The decision to
include in the 2021 report the fact of the complaint having been made and upheld was in
6
defiance of the petitioner's legitimate expectation. There was a clear and unambiguous
representation, reliance upon it and detriment.
[12]
Separately, senior counsel argued that the scope of inspection 3 giving rise to the
2021 report, as communicated to the petitioner, was to address its performance in the light of
the COVID-19 pandemic, and not to follow up on the complaint. To follow up on the
complaint in inspection 3 was unfair, irrational and in breach of the petitioner's A1P1 rights.
[13]
Senior counsel referred to the following authorities: Abdi Nadarajah v The Secretary of
Heritage v Secretary of State for Communities [2019] 1 WLR 929 at paragraph 36; Finucane's
application for Judicial Review [2019] HRLR 7, at paragraphs 62-64 and 72; R v North and East
Devon Health Authority, ex parte Coughlan [2001] QB 213 at [57]; Asim v Secretary of State
ö
The respondent's argument
[14]
In order to found a legitimate expectation, any representation must be clear,
unambiguous and devoid of relevant qualification. The question was how, on a fair reading,
it would have been reasonably understood by those to whom it was made. The
representation was made in the course of an investigation into the complaint. The meeting
at which it was made was focussed on the complaint outcome. EM had asked about the
family expectations of "outcome" and "sanction". The respondent's representatives had
referred to the basis for "upholding or not upholding" a complaint. The immediate context
to the representation was provided by a question from EM relating to the respondent's
"report and various letters", and what would end up in the public domain . The "report"
7
referred to the report on whether the complaint would be upheld, and "various letters"
referred to letters to the patient's family. The statement "we will not be putting anything
in the public domain" was plainly a reference to the outcome of the complaint. It could
not fairly be read as a "clear, unambiguous" representation "devoid of relevant
qualification", that the respondent would avoid putting any reference to the fact that a
complaint had been made into the public domain. The 2021 report did not state whether the
complaint was upheld or not. It noted a requirement and recommendations. Requirements
and recommendations could be made even where a complaint was not upheld.
[15]
The reading contended for by the petitioner would have "sat awkwardly" with the
respondent's statutory obligations and its own policy. Where the respondent had made
requirements and recommendations following a complaint, it was under a statutory duty to
follow these up at subsequent inspections, to prepare a report on these inspections, and then
to publish the report, or at least to make it available on request.
[16]
In any event, TB had prefaced her answer containing the representation with the
words, "At the moment, nothing". This referred to the near future. The representation was
"relevantly qualified". The respondent's representation could not fairly have been
understood as a promise extending into 2021.
[17]
Separately, the respondent had already referred to the complaint in its 2019 report .
While the petitioner had instituted judicial review proceedings in respect of the 2019 report,
the grounds of review did not initially deal with the complaint. By issuing its draft 2019
report, the respondent could not have been clearer regarding its intention to publish. Any
expectation the petitioner may have acquired had ceased to be reasonable or legitimate at
that moment.
8
[18]
Regarding the petitioner's alternative argument based on the scope of inspection 3,
the words in the respondent's email on which the petitioner relied were that, "The purpose
of the inspection is to make sure the service is delivering care safely to patients, in light of
the COVID-19 pandemic". These words did not limit the inspection's scope to COVID-19.
The phrase "in light of COVID-19" made it clear that COVID-19 was the context or
backdrop. The petitioner was wrong to read "in light of" as if it meant "in respect of". This
was reinforced by the comma separating "[t]he purpose of the inspection is to make sure the
service is delivering care safely to patients" from "in ligh t of the COVID-19 pandemic". Any
other interpretation would have put the respondent in breach of its own policy, which
required it to follow up on complaints at subsequent inspections. In any event, the
respondent was addressing the petitioner's concerns expressed in an email regarding
logistical matters. One would not have expected such a dramatic restriction in the scope of
the inspection to be revealed in this manner.
[19]
There was an additional objection raised by counsel, namely, that while the
petitioner had identified where the decision under challenge could be found, that is, in the
2021 report, it had failed adequately to identify what that decision actually was.
[20]
Counsel referred to the following authorities: R (Bancoult) v Secretary of State for
Foreign and Commonwealth Affairs (No 2) [2009] AC 453, per Lord Hoffman at para 60; R v
Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545; R (Association of
British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397 per
Dyson LJ at para. 56).
9
Decision
[21]
I will deal firstly with the respondent's criticism that the petitioner has failed
adequately to identify the decision being challenged. As I understand it, by issuing the 2021
report in draft to the petitioner, the respondent had effectively announced it s intention to
put the contents of that report, including its reference to the complaint, in the public domain.
That is the decision under challenge, and there is no substance to this aspect of the
respondent's submissions.
[22]
That incidental matter aside, I consider that the respondent's submissions are well
founded on the central question of whether the petitioner can be said to have acquired a
legitimate expectation that the respondent would not publish anything relating to the
complaint. In particular, whatever the respondent's representations and conduct relied
upon by the petitioner, these require to be understood against the relevant background of
law and public policy against which the respondent is obliged to conduct its affairs. The
central principle, in accordance with which the respondent must exercise its functions, so far
as relevant to this case, is to protect and enhance the safety and wellbeing of all persons who
use independent health care services (1978 Act, section 10B). In accordance with that
principle, the respondent has a duty to provide information to the public about the quality
of independent health care services (section 10E). It has powers of inspection (1978 Act,
section 10J). It has an obligation to prepare reports on matters inspected, and, at the very
least, to make such reports available for inspection by any person, and to take such steps as
it considers appropriate for publicising any report (section 10N(1) and (3)).
[23]
Having regard to the respondent's statutory obligations, I would go so far as to
doubt whether it was within the respondent's power to make any representation, while still
at the inspection stage, that it would not publish its report on the matters being inspected in
10
March 2019 (inspection 1). At the very least, any such report would have to be made
available for inspection by any person at its offices. Arguably, that requirement falls just
short of publication, and perhaps also short of being "put in the public domain". However,
the respondent is also obliged to consider what steps would be appropriate for publicising
any report. In this case, the representation founded upon was made at a meeting held on
the very day of the inspection. Not only had no report yet been completed, but, as is
apparent from the minutes of that meeting, the respondent's investigation was far from
completion. Arguably, therefore, any promise not to put its eventual report on the matters
inspected into the public domain would have been premature, and ultra vires the
respondent's statutory obligation to keep open for consideration whatever publicity that
report should ultimately be given. However, counsel for the respondent did not go this far
in his submissions, and not having been addressed by parties on whether any legitimate
expectation could have been acquired on the basis of an ultra vires representation, I do not
propose to consider the matter further here.
Clear, unambiguous and devoid of relevant qualification
[24]
Rather, the respondent's submission was that, on no fair reading of the minutes,
could the respondent reasonably have been understood by the petitioner to have been
making a clear, unambiguous representation that was devoid of relevant qualification. I
agree. What was said at the meeting in March 2019 must be understood in its proper
context, and that included the public policy and statutory duties outlined above, as well as
the actual policy on inspections and reports adopted by the respondent. If the legitimate
expectation contended for by the petitioner was not actually inconsistent with the
respondent's statutory duties, as I have suggested it might have been, then at the very least
11
it "sat awkwardly" with them, as the respondent argued. No such expectation could ever
reasonably have been acquired. In any event, in the context of the discussions that took
place, the respondent need only be understood as having promised not to divulge the
outcome of their investigation into the complaint; the respondent's representation did not
unambiguously extend also to such requirements and recommendations as might be set by
the respondent, whether or not the complaint was upheld. Standing the respondent's
statutory obligations, and its own policy on inspections, nor could its representation
reasonably be given such an expansive interpretation.
[25]
Counsel for the respondent had further submitted that the representation was
relevantly qualified by the words, "At the moment, nothing". I have some difficulty with
his submission that this should be taken to be referring to the "near future", and also with
whatever the "near future" might be in this context. However, nor do I consider that it
would have been reasonable for the petitioner to interpret the representation as binding the
respondent for all time coming. The petitioner would have been aware, at the time the
representation was made that further inspections would be possible and indeed likely,
inspections at which the respondent would "confirm requirements and recommendations
made at previous inspections". At such further inspections, the petitioner's intervening
response to the earlier requirement set by the respondent would be a new matter to be
inspected and reported upon. The respondent could never reasonably have been
understood, either by its representation at the meeting, or by not immediately producing a
report following inspection 1, as having promised never to refer to the original requirement
when carrying out and reporting on subsequent inspections.
[26]
This argument is supported by what actually happened followin g inspection 1. The
respondent carried out a further inspection (inspection 2) between 31 July 2019 and 1 August
12
2019, and reported on it in its 2019 report. Section 1 of that report was headed up, "Progress
since our last inspection". It discussed "what the provider had done to meet the
requirement we made after out complaint investigation on 20 March 2019". After restating
the requirement that the petitioner "must ensure that it involves individuals with a welfare
power of attorney in discussions relating to the care of patients" - it went on to state, "We
saw evidence in patient care records that these discussions took place for some patients.
However, it was not always clear from patient care records whether a patient had a welfare
power of attorney in place. This requirement is not met (see requirement 3)." Requirement
3 was a new requirement which both restates and expands upon the requirement imposed
following inspection 1. It said:
"Requirement 3 Timescale: immediate
The provider must ensure that it involves individuals with a welfare power of
attorney in discussions relating to the care of patients. In order to do this, the staff
must be clear whether or not a welfare power of attorney has been appointed.
Documents relating to capacity and power of attorney must be available in the
clinical notes."
It is difficult to see how the respondent could have stated this new requirement, arising out
of inspection 2, without referring to the original requirement arising out of inspection 1.
This example also lends support to the respondent's submission that it is necessary to
distinguish between whether a complaint has been upheld or not, on the one hand, and
requirements and recommendations, on the other. The investigation into a complaint looks
to the past, whereas requirements and recommendations look to the future; as such, they can
develop a life of their own, independent of the complaint that occasioned them, and can
indeed must, according to the respondent's policy become the subject of further
investigation.
13
[27]
Senior counsel for the petitioner relied heavily on that part of the inspection
methodology that refers to "follow up inspections" in the context of "upheld complaints",
suggesting, as I understood him, that because the 2021 report was occasioned by a "follow
up inspection", it should be understood as referring to the complaint as having been upheld,
in defiance of the petitioner's legitimate expectation. That submission, in my opinion,
tended to read the inspection methodology as if it were a conveyancing document. It is
perfectly clear from the respondent's policy, read as a whole, that its inspections, whether
labelled as "follow up inspections" or not, would confirm requirements and
recommendations made at previous inspections.
The failure to challenge the 2019 report on any ground relating to the legitimate expectation
[28]
I would not have sustained the respondent's submission that the petitioner had
somehow lost his legitimate expectation by failing initially to include any reference to it in
proceedings for judicial review relating to the 2019 report. Counsel for the respondent did
not seek to argue this point on the basis of waiver or personal bar. Rather, his argument was
premised on overall considerations of the reasonablen ess of the expectation.
[29]
Approaching the matter in this way, I consider that detrimental reliance, though not
generally necessary to establish a legitimate expectation, may be relevant when deciding
whether it has been lost. Where there has been no detrimental reliance, the continuing
legitimacy of the expectation may be precarious, and may conceivably be undermined by a
failure to take the point when provided with an opportunity to do so. But where, as here,
the petitioner argues that, as a result of th e representation, he had lost the opportunity to
bring judicial review proceedings in relation to the complaint, then if the petitioner had a
legitimate expectation at all and I am here proceeding on the hypothesis that it did then
14
its legitimacy had more or less crystallised as a substantive ground of review as at that
point. I do not consider that it became less legitimate or less reasonable an expectation
simply because the petitioner failed initially to include it as a ground of review in its
challenge to the 2019 report.
[30]
In any event, as I was informed, this ground of review has since been included by
way of an amendment made on 13 May 2021 in the related judicial review proceedings. It
may be that the amendment could have been made at an earlier stage, but I received no
submissions on that matter, and I would be reluctant effectively to penalise the petitioner for
not doing so, particularly having regard to the disruptions caused by the COVID-19
pandemic.
The alleged purpose of inspection 3
[31]
The petitioner's final argument was that it was irrational, unfair and in breach of its
A1P1 rights for the respondent to have included the complaint in its inspection 3, and in the
subsequent 2021 report. In my opinion, there is no substance to this argument, for the
reasons given by the respondent.
Disposal
[32]
I shall sustain the respondent's third plea-in-law and refuse the petition. As I noted
earlier, the petitioner requested that I anonymise this opinion, in order to protect its position
should it wish to reclaim. Clearly, if it reclaims, and is ultimately successful in preventing
publication of the 2021 report, then its objective will have been undermined by my having
identified the petitioner as having been the subject of a partially upheld complaint.
15
Exercising the inherent jurisdiction of the court to regulate its own procedure, I have
therefore acceded to its request. I shall reserve all questions of expenses.
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