Professor David Taggart, a Cardiovascular Surgeon, was granted permission to seek a Judicial Review of a report dated 10 July 2020 produced by the Defendant, the Royal College of Surgeons (the RCS), and their refusals to withdraw or correct the report, as set out in letters dated 12 August and 15 September 2020. The report was provided as part of the Invited Review Mechanism (IRM) conducted by the RCS.
Prof Taggart was employed by Oxford University NHS Foundation Trust (the Trust) since 1995. He is primarily based at the John Radcliffe Hospital, but had a fortnightly out-patient clinic at Northampton General Hospital.
In 2019 the Trust asked the RCS to carry out a CRR in relation to patient MC. This patient had been transferred from Northampton General Hospital to John Radcliffe Hospital the day before, being treated by the Claimant. The Claimant was not given any opportunity to comment before, on 4 November 2019, the RCS completed its report and sent it to the Trust. The accompanying letter from Professor Rockall recommended that the Trust consider further discussion of the circumstances with the relevant GMC Employer Liaison Advisor (ELA) and sought confirmation that this had taken place. The Trust gave that confirmation. The Claimant made a complaint that although the report records that the Trust had provided the RCS with copies of relevant clinical records, it appears that the RCS had not received copies of the Northampton General Hospital records.
On 27 November 2019 the Trust provided the Claimant with a copy of the CRR report. The Claimant duly provided detailed comments on it. The Trust decided to ask the RCS to carry out an individual review in respect of the Claimant. The Trust also restricted the Claimant from clinical work.
Due to a number of circumstances, the Trust changed its mind and asked the RCS to carry out a CRR as opposed to an individual review. The RCS agreed.
On 10 July 2020 the RCS issued the CRR report that is the subject of this challenge and shared it with the Trust. The report identified a number of concerns in respect of the cases considered. It contained seven recommendations, including that the Trust take advice from the GMC ELA. It recommended that the Trust provide further follow-up of any patients where it considered this was necessary to protect patient safety and to ensure compliance with the duty of candour. On 23 July 2020 the Trust submitted a referral of the Claimant to the GMC.
Mrs Justice Hill noted in her legal analysis that “Judicial review is generally not available in relation to employment matters…” citing R v BBC, ex parte Lavelle  1 WLR 23:
“[w]here a public authority takes action in relation to an employee, such as disciplinary action or termination of an employment relationship, this will normally be a matter for contract or employment law rather than judicial review”.
Prof. Taggart sough to pursue the court that, in carrying out its IRM function, the RCS is a body exercising a public function. The RCS relied on the voluntary and contractual nature of the IRM saying, in brief:
“It is for a healthcare organisation, whether in the public or private sector, and whether within the UK healthcare environment or outside it, to request an IRM. It is not the case that the IRM service is used almost exclusively by public organisations, as asserted by the claimant.”
Mrs Justice Hill found in favour of the RCS saying:
The most concise distillation of the approach to be applied to determine whether a particular power is amenable to judicial review remains the Court of Appeal’s analysis in Beer at , given by Dyson LJ. This requires consideration of (i) the source of the power in question; and (ii) if that does not provides the answer, an analysis 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.
In relation to the first point (the source of the power), Hill J said:
“The source of the power to conduct an IRM is not legislative. I draw limited assistance from the Claimant’s argument that at one point the government was considering regulations about information-sharing in the healthcare sector. This is quite different to proposed legislation to govern the IRM process. Information-sharing might be part of, or the result of, an IRM process, but the two things are not identical. I do not therefore consider that these proposed regulations involve a recognition that the IRM function has become suitable for legislation as the Claimant suggested.”
In relation to second (an analysis), Hill J commented:
“There is no doubt that IRMs which are critical of individual surgeons, like the CRR here, are likely to lead to adverse personal consequences for that surgeon, as they have here. It is consistent with the expertise involved in the IRM and the tenor of the Handbook that commissioning organisations are likely to follow the recommendations of an IRM, albeit that they are not required to do so. Specifically, it is likely that any recommendation of contact with the GMC will be followed, again even if they are not required to do so.
“However, the fact remains that IRMs are, strictly and formally, advisory. They do not lead, in themselves, to direct consequences for surgeons.”
Ultimately she said:
“Overall, therefore, having considered the nature of the power and function, I do not consider that the IRM process itself has a sufficient public law element, flavour or character to render it amenable to judicial review.”
Direct remedy against the RCS
She noted in her ruling that:
“…the fact that the Claimant does not have a direct remedy against the RCS to challenge the procedure followed or the contents of the report is not in itself a reason for treating the IRM process as if it were a public function. It is also relevant that the Claimant is not entirely without remedy: he was able to request, through the Trust process, revisions to the IRM report; he has brought civil proceedings against the Trust relating to the actions it took after the IRM; and if the GMC later acts against him in a way which he considers to be unlawful, he can bring judicial review proceedings against the GMC.
“I readily accept that, as the facts of this case illustrate, a surgeon can perceive the IRM as having a significant amount of potential power, as the Panel on Takeovers and Mergers was considered to have in Datafin. It is also the case that absent the right to bring judicial review proceedings against the RCS, a surgeon in the Claimant’s position does not have a direct remedy against the RCS to remedy what are said to be failings in the IRM procedure or the content of the report, or to prevent the report’s dissemination. To that limited extent, the case is similar to Ingoldby.”