Case Note - amenability to judicial review challenge: R (Taggart) v The Royal College of Surgeons [2022] EWHC 1141 (Admin)

26 May 2022

The Administrative Court of England and Wales has recently considered whether the Royal College of Surgeons (RCS), when producing a report, under the ‘Invited Review Mechanism’ (IRM), could be challenged by way of judicial review.  The judgment of Mrs Justice Hill provides a helpful review of the relevant authorities and illustrates the limits of the judicial review jurisdiction – she concluded that a challenge could not be made.
 

In summary, the background to the case was that the Oxford University NHS Hospital Trust (the Trust) commissioned the RCS to produce report under the IRM in relation to a consultant cardeothoracic surgeon employed by the Trust, Professor Paul Taggart.  The IRM is a process by which the RCS provides an external expert opinion in relation to surgical standards. Three different types of report can be commissioned by a healthcare organisation through the IRM – and in Professor Taggart’s case what was commissioned was a ‘clinical record review’ (CRR). In the RCS’ IRM handbook, the RCS makes it clear that reports produced under the IRM mechanism are advisory only and that they are to “support but not replace” the healthcare organisation’s own procedure for managing surgical performance.

In Professor Taggart’s case, in July 2020, following receipt of the CRR, the Trust imposed restrictions on Professor Taggart’s practice – stopping him for undertaking surgery – and referred him to the General Medical Council, his professional regulator. Professor Taggart wished to challenge the report (on grounds of unfairness and procedural impropriety) with a view to requiring the RCS to issue a revised report. Permission for judicial review was granted and the question of whether the RCS, in producing reports under the IRM was amenable to judicial review was directed to be heard as a preliminary issue.

In her analysis of the applicable legal framework, Mrs Justice Hill noted as a starting point that “judicial review is generally not available in relation to employment matters”, which will normally be dealt with under contract and/or employment law. She then reviewed a number of cases in which the Courts had gradually expanded the judicial review jurisdiction so that it applied to bodies beyond those whose powers under challenge were derived from statute or the prerogative. She found that the most helpful statement of the principles was in the Court of Appeal decision in R (Beer) V Hampshire Farmers Market Limited [2004] 1 WLR 233, where what was said  was “…the law has now developed to the point where, unless the source of power clearly provides the answer, the question whether a decision of a body is amenable to judicial review requires careful consideration of the nature of the power and function that has been exercised to see whether the decision has a sufficient public law element, flavour or character to bring it within the purview of public law”.

Applying that approach, Mrs Justice Hill considered first of all what was the ‘source of power’ under which the RCS was operating. The answer was that it was under a contract between the RCS and the Trust – and there was no suggestion of any statutory underpinning to the contact.  Often, where a body’s source of power is purely contractual, that will be enough to establish that the body is not amenable to judicial review. However in this case, where Professor Taggart was not a party to the relevant contract,  Mrs Justice Hill considered this was not determinative and so went to assess whether there was a “sufficient public law element”.

In considering that question,  Mrs Justice Hill started by recognising that, in practice CRR reports that are critical of surgeons are likely to lead to adverse personal consequences, for those surgeons. However she considered it important that, formally, the CRR report on Professor Taggart was only advisory and that it was the actions of the Trust, as his employer, following receipt of the report that directly had an adverse impact on him  - “I consider it fair to classify the IRM as akin to  an extension of the employment relationship. The employer can choose to use an IRM to obtain views about a surgeon’s work and can then decide to act on the contents of the IRM. Judicial review is not generally available in relation to employment matters”. More generally, she was clear that the IRM process “was not closely enmeshed in the activities of a public body” (a test that had been suggested by Lord Woolf in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48 for assessing the very closely related question of whether a body was a ‘public authority ’or exercising ‘a public function’ for the purpose of section 6 of the Human Rights Act 1998). She acknowledged that the consequence of holding that the RCS was not amenable to judicial review meant that Professor Taggart had no direct remedy against the RCS in circumstances where “as the facts of this case illustrate, a surgeon can perceive the IRM as having a significant amount of potential power”, but held, following cases such as R v Panel on Takeovers and Mergers, ex pte Datafin PLc [1987] QB 815, that this was not a reason for deciding that a process was amenable to judicial review.

In the Beer case, after setting out the passage cited above, Lord Dyson MR went on to say “ It may be said with some justification that this criterion for amenability” – ie ‘a sufficient public law element, flavour or character’ – “is very broad, not to say question-begging. But it provides the framework for the investigation that has to be conducted.” What the decision in Taggart shows is both the application in practice of such an investigation and also that, although very broad, the Courts do recognise limits to their judicial review jurisdiction.

FURTHER INFORMATION

For further information on the issues raised in this blog, please contact Adam Chapman in our Public Law team.

 

ABOUT THE AUTHOR

Adam Chapman joined Kingsley Napley in January 2010 as a partner in the Public Law team. He has nearly 30 years experience as a public lawyer and previously spent most of his career in central government, working at the Treasury Solicitor’s Department and at the Attorney General’s Office.

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