Information request relating to the Ombudsman’s implementation of the 'Bolam test'
We investigate complaints about the NHS under the Health Service Commissioners Act 1993 to establish if service failure or maladministration has led to injustice or hardship. When considering a complaint, we begin by comparing what happened with what should have happened. We consider the Ombudsman’s Principles that we think all organisations should follow. We also consider the relevant law and policies that the organisation should have followed at the time. If the organisation’s actions, or lack of them, were not in line with what they should have been doing, we decide whether that was serious enough to be maladministration or service failure. We then consider whether maladministration or service failure has led to an injustice or hardship. If we find an injustice that has not been put right, we will recommend action. Our recommendations might include asking the organisation to apologise or to pay for any financial loss, inconvenience or worry caused. We might also recommend that the organisation take action to stop the same mistakes happening again.
You might also be interested to know that there was a court case (R. (on the application of Attwood) v Health Service Commissioner [2008] EWHC 2315 (Admin)) which considered whether the Ombudsman was bound to apply the Bolam test. The High Court found that we were not bound to apply the Bolam test. However, the High Court did find that we had applied a test which was indistinguishable from the Bolam test. Consequently, since that judgment we have developed our consideration of complaints to the model that I have described above.
FOI/DP Officer
Parliamentary and Health Service Ombudsman