R (Professor Paul Taggart) v The Royal College of Surgeons of England
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill |
| Judgment Date | 13 May 2022 |
| Neutral Citation | [2022] EWHC 1141 (Admin) |
| Docket Number | Case No: CO/3486/2020 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 1141 (Admin)
Mrs Justice Hill
Case No: CO/3486/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jeremy Hyam QC and Natasha Barnes (instructed by Radcliffes LeBrasseur LLP) for the Claimant
Simon Gorton QC and Iain Steele (instructed by Markel Law) for the Defendant
Hearing date: 5 April 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The Claimant is a cardiothoracic surgeon employed by Oxford University NHS Foundation Trust (the Trust). By this claim he seeks 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.
On 28 May 2021 Jay J granted the Claimant permission to apply for judicial review. He later directed this hearing of the preliminary issue of whether the IRM is amenable to judicial review. The Claimant relied on witness evidence from Dr Roger Palmer (Medicolegal Consultant Team Leader within the Medical Protection Society (MPS)) who has advised the Claimant and several other MPS members in cases where an IRM has been carried out. The RCS relied on witness evidence from Professor Timothy Rockall (Chair of its IRM) and Dr Adam de Belder (Medical Director of the Royal College of Physicians' Invited Review Service).
The facts
The RCS and the IRM
The RCS was established by Royal Charter in 1800 for the study and promotion of the art and science of surgery. It is an independent professional membership body and a registered charity. It is funded through membership fees, income generated from its activities and investments, charitable donations, grants and legacies. The RCS provides education, assessment, development and support to surgeons, dental surgeons and members of the wider surgical and dental teams at all stages of their career. It also sets professional standards, facilitates and funds surgical research and champions world-class surgical trials for patients.
One of the functions the RCS has assumed is to offer its IRM service to healthcare organisations. In summary, the IRM is a process by which an external expert opinion in relation to surgical standards is provided, under private contractual arrangements, for a fee. The RCS has offered this service since 1988, together with the ten Surgical Specialty Associations (SSAs).
An IRM can only be initiated upon formal request by a healthcare organisation, not individual surgeons or staff members. IRMs are conducted pursuant to private contractual arrangements between the RCS and a commissioning healthcare organisation. The healthcare organisation must make a formal request for review, must agree to the conditions set out in the Handbook and must pay a fee which depends on the nature and scope of the review. It is only if the review request passes the necessary threshold set by the IRM Chair and the relevant specialty member of the IRM Oversight Group that it will be deemed appropriate for a review to be carried out. Even then, because it is a privately contracted service, there can be circumstances in which a request for a review is declined by the RCS.
The IRM is seen as giving a “fair, independent professional review” to “support, but not replace” a healthcare organisation's own procedure for managing surgical performance or the processes of any formal regulatory body. Professor Rockall's evidence was that the IRM is a “valued service” for healthcare organisations because it “promotes early action to address potential concerns, offers flexibility as to the nature and scope of the review, is peer and patient led with the interests of patient safety at the heart of every review and is specialist, independent and expert”.
The RCS provides three different types of IRM: (i) a service review, which relates to the way a surgical service is being delivered and how this might be improved; (ii) an individual review, which relates to an individual surgeon's alleged unsatisfactory surgical practice; and (iii) a clinical record review (CRR), which relates to whether the management of a specific case or series of cases has met the required RCS or specialty association standards.
The IRM is described in the RCS's Invited Review Handbook, most recently published in 2018. The Handbook sets out certain procedural requirements. For example, it is specified that the review, though not formal, will be carried out in an open, fair and structured manner and that all relevant documents relied on by the healthcare organisation and given to the reviewers will also be made available to the surgeon being reviewed and vice versa.
The review team in an individual review normally consists of two surgeons and one layperson. In a CRR, the team usually consists of two surgeons. The terms of reference setting out the scope for an individual review must be shared with the surgeon under review in advance of the visit. The surgeon is asked to confirm in writing that they agree to participate in the review and that they have been fully informed by the organisation of its purpose and arrangements. No such provision is made for a CRR.
An individual surgeon whose performance has been reviewed under an IRM is not a party to the contract. The report is not in the first instance sent to the surgeon. If the IRM identifies any circumstances where an individual's performance is considered unsatisfactory and patient safety is thought to be at risk, appropriate recommendations will be made for consideration by the commissioning healthcare organisation. In addition, the IRM may recommend (and did here) that the organisation inform patients about the safety risk, pursuant to the duty of candour provisions. These provisions are derived from the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 20.
Once a report has been sent to the commissioning organisation, it becomes the organisation's property. Responsibility for considering what if any action to take consequent on the report rests solely with the commissioning organisation. The Handbook makes clear that “invited review arrangements are not regarded as an abrogation of, or a replacement for, the healthcare organisation's own decision making and disciplinary procedures which must strictly be applied according to their terms”. It is also clear that “[i]nvited review reports are advisory and their recommendations are for consideration by the healthcare organisation commissioning the review”. That said, the Handbook indicates that where concerns about patient safety are identified and reported to the commissioning healthcare organisation, the organisation “will consider and act on all the review team's recommendations”, as well as ensuring that when doing so all other places in which the surgeon provides a surgical service are made aware of the review's recommendations.
The Handbook emphasises that the healthcare organisations remain entirely responsible for all decisions or subsequent actions, upon which it is urged to seek appropriate legal advice. It also requires the healthcare organisation to provide feedback to the RCS on the progress made on implementing the recommendations from the report when the RCS request the same. It is said that the RCS will normally follow up actions taken with the healthcare organisation during the six months after the final report has been provided to them. If the healthcare organisation decides against implementing the review's recommendations it is said that the organisation should be prepared to fully explain its reasons for so doing.
The Handbook also makes provision for openness and transparency. It is said that where patient safety risks or other issues related to the quality of patient care have been identified, the RCS “expects” the healthcare organisation to make available to the public a clear summary of the review that has taken place and the steps the organisation is taking to address the issues and the applicable recommendations.
There are a number of regulatory bodies that deal with fitness to practise and disciplinary issues in relation to healthcare professionals. The RCS is not a healthcare regulator. It is no part of the RCS's role to investigate or take action in respect of the fitness to practise of individual surgeons or to impose measures and sanctions against NHS Trusts. The General Medical Council (GMC) is the independent statutory regulator that maintains the register of medical practitioners within the United Kingdom. The GMC's chief responsibility is to protect, promote and maintain the health and safety of the public by controlling entry to the register and suspending or removing members when necessary. The Care Quality Commission (CQC) is the independent regulator of health and adult social care in England. The CQC registers care providers, monitors, inspects and rates services and takes action to protect people who use those services.
However, the RCS, the SSAs and the reviewers reserve the right, in the public interest, to disclose the...
To continue reading
Request your trial