Outer House rejects hospice’s challenge of report by public health body detailing service complaint

A petition for judicial review by a hospice challenging the decision of Healthcare Improvement Scotland to publish a report containing details of a complaint made against it has been refused by a judge in the Outer House of the Court of Session

The anonymous petitioner, Y, argued that it had a legitimate expectation that the complaint would not be published by the respondent following representations it made at a meeting following the complaint. 

The petition was heard by Lord Harrower. Walker QC appeared for the petitioner, while the respondent was represented by Gardiner, advocate. 

Unambiguous representation 

The petitioner’s premises were inspected by a team from the respondent in March 2019 in order to investigate a complaint made against it. At the end of this visit the inspectors met with representatives of the petitioner. At this meeting, a representative of the petitioner asked about the details that would end up in the public domain, with a representative of the respondent replying that, while nothing would go there at present, there was a consultation out which partly concerned whether reports should be published online. 

Later that month, the respondent partially upheld the complaint made against the petitioner. The details of this decision were not published. However, a second inspection of the premises occurred in the summer of 2019 to investigate action taken by the petitioner to meet the requirements and recommendations made following the first report. 

Following the second inspection, a draft report was prepared by the respondent and issued to the petitioner. The draft report mentioned the original complaint and noted that some of the measures imposed by the respondent had not been implemented by the petitioner. A third inspection was carried out in December 2020 to determine whether the petition was delivering safe care to patients during the Covid-19 pandemic, and a draft report, which again mentioned the 2019 complaint, was issued to the petitioner. 

The petitioner challenged the publication of the 2021 draft report, founding on the representations made to it by the respondent’s representative in 2019. It was submitted that these formed a legitimate expectation on the part of the petitioner that any matter concerning the complaint would not be placed in the public domain. 

In response, counsel for the respondent submitted that the representations made could not fairly be read as a clear, unambiguous representation that it 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 had been upheld or not, and in any event the original representation had been qualified by the statement that “at the moment” no details of complaints were put into the public domain. 

Proper context 

Lord Harrower, in his opinion, began by noting: “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.” 

He continued: “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.” 

Addressing whether the representation given was clear and unambiguous, he said: “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 it ‘sat awkwardly’ with them, as the respondent argued.”  

He went on to say: “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.” 

Lord Harrower concluded: “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.” 

For these reasons, the petition was refused.

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