I imagine the issue rests on heavily on whether the RC is exercising public law functions and/or is considered to be a public body.
I’m struggling to find any case law specific to this issue. Yes there is case law that has decided how to ascertain ‘public law functions’ and ‘public authority or body’ etc
Assistance is welcomed.
In short, no he can’t, he is not a public body, but his public body can be challenged over the decison.
Ben’s approach works in practice – but here’s a judicial review in which the RC’s status as defendant seem to have been uncontentious: R (W) v Dr Larkin [2012] EWHC 556 (Admin).
This is what Richard Jones says in the Manual (27th edition, para 1-504):
The appropriate practitioner, the nominated medical attendant and the responsible clinician (RC) are exercising “functions of a public nature” and are therefore public authorities for the purposes of s.6 [Human Rights Act 1988] and its decisions are susceptible to judicial review (R (A) v Partnerships in Care Ltd [2002] EWHC 529 (Admin)).
Other cases where the judicial reviewability of decisions by RCs was treated as uncontentious (actually RMOs, but no reason why it should be different) include:
R (Morley) v Nottinghamshire Health Care NHS Trust [2002] EWCA Civ 1728
(see para 30ff in particular)
That said, I can’t recall a case where an RC/RMO has been successfully JR’d
R (IH) v. Secretary of State for the Home Department [2003] UKHL 59 is a good place to start.
Part of the appellant’s argument was that “…psychiatrists, as hybrid public authorities within the scope of section 6(3)(b) of the Human Rights Act 1998, had failed to act compatibly with the appellant’s Convention rights …”
At para 11 Lord Bingham set the scene:
By section 6(1) of the 1998 Act, “It is unlawful for a public authority to act in a way which is incompatible with a Convention right”. The Convention rights referred to, scheduled to the Act, include article 5 of the Convention. Section 6(3) of the Act defines “public authority” as including
"(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature."
A person falling within (b) has come to be called a hybrid public authority, bound to act compatibly with the Convention only when exercising public functions. By subsection (6), an act includes a failure to act. Section 2(1)(a) requires domestic tribunals, determining any question which has arisen in connection with a Convention right, to take into account any judgment or decision of the European Court of Human Rights.
But it all ends with a bit of damp squib, at para 29:
This conclusion makes it unnecessary, in my opinion, to address a question on which the House heard argument, but which was not considered below, whether in a context such as this psychiatrists were or could be a hybrid public authority. Determination of that question is best left to a case in which it is necessary to the decision. We are nonetheless grateful to the Royal College of Psychiatrists for its submissions on this point.
In JK v A Local Health Board [2019] EWHC 67 (Fam) is case where an RC was successfully judicially reviewed. This case confirms that RC’s decisions under S63 MHA can be judicially reviewed, particularly when they intersect with human rights law and involve medical interventions. The judgment clarified that clinicians (including RCs) must carefully assess the legality and proportionality of treatment decisions, when there are human rights considerations (being compatible with Art 3)
This case was a private law application brought by A Local Health Board concerning future medical treatment of JK. The central issue was whether JK could lawfully be force fed under section 63 of the Mental Health Act 1983 or under the Mental Capacity Act 2005, particularly in light of his advance decision refusing treatment.
It is classified as private law because the court exercised its inherent jurisdiction and statutory powers under the Mental Capacity Act to determine JK’s capacity and the lawfulness of treatment. The proceedings focused on JK’s autonomy and future care rather than on reviewing the legality of any past or ongoing decision by a public authority. No administrative conduct was challenged, and the evidence considered was specific to JK’s situation.
The Health Board did not ask the court to review a statutory power exercised unlawfully or irrationally. Instead, it sought guidance on the legal effect of JK’s advance decision and whether future treatment—such as force feeding—could be lawful. That places the MCA analysis within a private law proceeding, focused on JK’s autonomy and best interests under the statute.
In this case, no public authority or individual was judicially reviewed. The Local Health Board was not reviewed, nor was the Responsible Clinician (Dr J) considered a candidate for judicial review.
However, Mrs Justice Lieven indicated that the Health Board may in future become subject to judicial review if it were to administer treatment contrary to JK’s valid and capacitous advance decision. This warning related solely to the Health Board’s prospective actions; no other party was identified as a candidate for public law challenge.
You’re right that JK wasn’t a JR, but it did remind me of something. The judge said:
- … Any decision to feed JK under s63 would also raise issue of necessity under Article 3. That decision would be amenable to judicial review, or alternatively be a matter that should be restored to court (if challenged by JK) in these proceedings. Any judicial review would on the authority R (JB) v Haddock [2006 EWCA Civ 961 at [13] be a full merits review.
There are several cases listed in Category:Challenges to compulsory treatment - Mental Health Law Online that involved the RMO as the defendant in judicial review proceedings. One of them was my own case from 20 years ago so I should have remembered! I think it was just accepted as being the right thing to do. I also vaguely remember the IH case that Roger mentioned as being fairly recent at the time.
Here’s another RC defendant JR: R (W) v Dr Larkin [2012] EWHC 556 (Admin).
So the ‘verdict’ based on evidence and reasoning is that ‘The Responsible Clinician can be subject to Judicial Review’. 