R (Professor Paul Taggart) v The Royal College of Surgeons of England

A privately contracted expert review is not amenable to judicial review merely because it concerns a regulated profession, is commissioned by a public healthcare organisation, or may influence later regulatory action. The court must consider the source of the power and, where that does not resolve the issue, whether the function has a sufficient public law element, flavour or character.

An invited review that is voluntary, contractual and advisory, and which does not itself alter legal rights or impose sanctions, remains a private matter akin to an extension of the employment relationship. The possibility of referral to a statutory regulator does not convert it into a public function. The absence of a direct private law remedy is not decisive.

The claimant, a cardiothoracic surgeon employed by Oxford University Hospitals NHS Trust, sought judicial review of a clinical record review report prepared by the Royal College of Surgeons under its Invited Review Mechanism. The report raised concerns about aspects of his clinical practice and made recommendations to the Trust, including that it seek advice from the General Medical Council.

The claimant challenged the report and the refusal to withdraw or correct it. Jay J had granted permission, and the court directed a preliminary determination of whether the Invited Review Mechanism was amenable to judicial review. The central issue was whether the contractual review process had a sufficient public law element, flavour or character.

1. The claim was dismissed. The Invited Review Mechanism was not amenable to judicial review.
2. The court applied the two-stage approach in R (Beer) v Hampshire Farmers Market Limited: first, consider the source of the power; secondly, if necessary, examine the nature of the power and whether the function has a sufficient public law element, flavour or character.
3. The source of the power was contractual and voluntary. The review arose from an agreement between the Royal College of Surgeons and the commissioning healthcare organisation, for a fee, and neither party was obliged to provide or commission the service. Although surgeons might be adversely affected without being parties to the contract, that factor did not determine amenability.
4. The Invited Review Mechanism was formally advisory. It did not itself impose restrictions, sanctions or other direct legal consequences. The commissioning organisation retained responsibility for deciding what action, if any, to take. The process was therefore akin to an extension of the employment relationship, in respect of which judicial review is generally unavailable.
5. The possibility that the Royal College might refer concerns to the General Medical Council or another regulator did not make the review a public function. Private individuals could make comparable referrals. Nor did recommendations concerning patient safety or the duty of candour, or the fair and structured procedures described in the Handbook, supply the necessary public law character.
6. The review was not so closely enmeshed in public regulation as to fall within public law. The factors identified in YL v Birmingham City Council pointed away from amenability. The absence of a direct remedy against the Royal College was insufficient, although the claimant had other potential remedies through the Trust’s processes and, if necessary, proceedings concerning later action by the GMC.

This was a first-instance judicial review claim. Permission was granted by Jay J on 28 May 2021. The court determined the preliminary issue of amenability and dismissed the claim.