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The High Court has ruled that invited reviews carried out by the Royal College of Surgeons are not amenable to judicial review.

The claim was brought by Professor Paul Taggart, a cardiothoracic surgeon employed by Oxford University Hospitals NHS Trust. He was dissatisfied about aspects of a report produced by the RCS after it had been commissioned to carry out a review by the Trust, and sought judicial review of the report. The issue of amenability to judicial review was heard as a preliminary issue.

Mrs Justice Hill held that the source of the power to conduct an invited review was the contract between the RCS and the commissioning healthcare organisation, which pointed against amenability to judicial review.

Further, there was no sufficient public law element, flavour or character. Whilst RCS reviews which are critical of individual surgeons are likely to lead to adverse personal consequences for that surgeon, the fact remains that such reviews are advisory and do not themselves have direct consequences. The RCS makes recommendations but it is for the commissioning healthcare organisation to decide what to do in response. RCS reviews are akin to an extension of the employment relationship and judicial review is generally not available in relation to employment matters.

Moreover, the fact that after a review the RCS could refer matters to the General Medical Council or another regulator if the commissioning healthcare organisation did not do so was not sufficient to render this a public function, and it could not be said that the RCS had been woven into the fabric of public regulation. The fact that the invited review function could have been carried out by private individuals or a private organisation, without any real ability to suggest that such a function should be amenable to judicial review, was a further indicator that such reviews are a largely private matter, as was the fact that RCS reviews can be commissioned by a private healthcare provider as well as a public one.

A copy of the judgment is available here. Iain Steele acted for the Royal College of Surgeons.

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