General

The LGSCO and PHSO have similar provisions in their respective legislation about discretionary decisions taken by the bodies which they investigate.  In each case, the relevant statute states that the Ombudsman is not authorised to question the merits of a decision taken without fault in the exercise of a discretion vested in that body.

The Ombudsmen investigate complaints of injustice/hardship caused by faut or service failure but cannot question a decision simply because the complainant disagrees with it or because an Ombudsman might have reached a different decision from the one that was actually made.

This is not to say that the Ombudsmen will never question the merits of a professional judgment, but they will only do so if they consider there is fault in the way that the decision or judgment was reached.  

Clinical judgments

Decisions about the merits of clinical judgments are specifically excluded from the bar on questioning the merits of a decision (Health Service Commissioners Act 1993, s3(7)). Therefore, in such cases, the team members will sometimes need to seek clinical advice in order to decide whether an exercise of clinical judgment amounts to service failure.