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Chambers & Partners
27/05/2022

Can you judicially review the Royal College of Surgeons for an independent review they carried out?

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Professor Paul Taggart a cardiothoracic surgeon employed by Oxford University Hospitals NHS Trust (OUH), sought a judicial review (JR) of a report produced by the Royal College of Surgeons (RCS) on the basis he was unhappy with various aspects of their report.

Simon Gorton QC, (instructed by Deborah Nicholson from Markel Law) leading Iain Steele of Blackstone Chambers, represented the RCS in a preliminary hearing to determine whether the role carried out by RCS was amenable to JR.

In a judgment handed down on 13 May 2022, Mrs Justice Hill held that it was not.

The RCS had been engaged by OUH to conduct an Invited Review Mechanism (IRM) at the trust. The RCS established by Royal Charter in 1800 is an independent professional membership body and a registered charity. An IRM can only be initiated by a healthcare organisation and it is conducted pursuant to private contractual arrangements agreed between the healthcare organisation and the RCS.

In a judgment setting out the provenance of the RCS, its role and the report in question, even though such a report can be critical of individual surgeons, it was held there was insufficient public law element (§74, 87 and 90) to bring it within the purview of public law. This determination applied the two limb test from Dyson LJ in R (Beer) v Hampshire Farmers Market Limited [2004] 1 WLR 233, §§6.

Further, whilst the RCS does have referral powers to the GMC or other regulator after an IRM had been concluded, this was also insufficient to render such a referral a public function (§84).

Relevant perhaps to all external parties brought into conduct investigations, Hill J found that the fact “the IRM could have been carried out by private individuals or a private supplier organisation … [was] a further indicator that the RM is a largely private matter” thus taking it outside the ambit of JR.

Given the reach and the wider implications arising from this case, it may be that an appeal is sought.

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Simon Gorton QC

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