The Administrative Court of England and Wales recently considered whether the Royal College of Surgeons (RCS), when producing a report, under the ‘Guest Review Mechanism’ (IRM), could be challenged by judicial review. Madam Justice Hill’s judgment provides a useful review of the competent authorities and illustrates the limits of judicial review jurisdiction – she concluded that a challenge could not be made.
In summary, the background to the case was that the University of Oxford NHS Hospital Trust (the Trust) commissioned the RCS to produce a report in connection with the MRI concerning a consultant cardiothoracic surgeon employed by the Trust , Professor Paul Taggart. MRI is a process by which the RCS provides an external expert opinion against surgical standards. Three different types of reports can be ordered by a healthcare organization through the MRI – and in Professor Taggart’s case what was ordered was a ‘clinical record review’ (CRR). In the RCS MRI Manual, the RCS specifies that reports produced under the MRI mechanism are advisory only and should “support but not replace” the healthcare facility’s surgical performance management process.
In the case of Professor Taggart, in July 2020, after receiving the CRR, the Trust imposed restrictions on Professor Taggart’s practice – arresting him for undertaking surgery – and referred him to the General Medical Council, his professional regulatory body. Professor Taggart wished to challenge the report (for unfairness and procedural irregularity) with a view to requiring the RCS to issue a revised report. Leave for judicial review was granted and the question of whether the RCS, by producing reports under the IRM, was subject to judicial review was ordered to be heard as a preliminary question.
In her analysis of the applicable legal framework, Madam Justice Hill noted as a starting point that “judicial review is generally not available with respect to employment matters», which will normally come under contract law and/or labor law. She then reviewed a number of cases in which the courts had progressively extended jurisdiction for judicial review to apply to bodies other than those whose contested powers derive from statute or prerogative. She concluded that the most helpful statement of principles was found in the Court of Appeal’s decision in R (Beer) V Hampshire Farmers Market Limited  1 WLR 233where what was said was “…the law has now evolved to the point where, unless the source of the power clearly provides the answer, the question whether a decision of an organ is subject to judicial review requires careful consideration of the nature of the power and the function which has been exercised to see whether the decision has sufficient public law element, flavor or character to fall within the domain of public law”.
Applying this approach, Madam Justice Hill first considered what was the “source of power” under which the RCS operated. The answer was that it was a contract between the RCS and the Trust – and there was no suggestion of a statutory basis for the contact. Often, when the source of a body’s power is purely contractual, this will suffice to establish that the body is not subject to judicial review. However, in this case, where Professor Taggart was not a party to the contract in question, Judge Hill found that this was not determinative and therefore went to assess whether there was a “sufficient element of public law”.
In considering this issue, Madam Justice Hill began by acknowledging that, in practice, CRR reports that criticize surgeons are likely to result in adverse personal consequences for those surgeons. However, she considered it important that, formally, the CRR’s report on Professor Taggart was advisory only and that it was the actions of the Trust, as his employer, after receipt of the report, that directly had a negative impact on him – “I believe it is fair to characterize MRI as akin to an extension of the employment relationship. The employer may choose to use an MRI to obtain opinions on the work of a surgeon and may then decide to act on the content of the MRI. Judicial review is generally not available with respect to employment matters”. More generally, she was clear that the MRI process”was not closely related to the activities of a public body(a test which had been suggested by Lord Woolf in Poplar Housing and Regeneration Community Association Ltd v Donoghue  QB 48 to assess the closely related question of whether a body was a ‘public authority’ or performed a ‘public function’ for the purposes of section 6 of the Human Rights Act 1998). She acknowledged that the consequence of concluding that the RCS was not subject 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 may perceive MRI to have significant potential power“, but retained, following cases such as R v Panel on Takeovers and Mergers, ex pte Datafin PLC  QB 815, that was no reason to decide that a process was subject to judicial review.
In the Beer case, after expounding the passage quoted above, Lord Dyson MR went on to say ” It can be said with some justification that this criterion of suitability” – that is to say “a sufficient public law element, flavor or character” – “is very broad, not to say questioning. But that gives the framework of the investigation which must be carried out. What is the decision in Taggart shows both the practical application of such an inquiry and also that, although very broad, courts recognize limits to their judicial review jurisdiction.