Doctor entitled to rely on GMC’s assurance that his Caribbean qualification would be acceptable in UK
18 April 2013
Patel, R(on the application of) v The General Medical Council [2013] EWCA Civ 327 – read judgment
Kate Beattie of 1 Crown Office Row was led by Richard Drabble QC for the appellant in this case. She has nothing to do with the writing of this post.
The registration criteria for doctors trained abroad have been changed to respond to abuse by medical schools claiming false affiliations with the institutions listed in the WHO Directory. Although the 2006 rules effecting this change were lawful, the appellant had a legitimate expectation that he could rely on individual and specific assurances that he would be allowed to register on completion of his training.
The appellant, a qualified pharmacist, wished to qualify as a doctor. He sought assurances from the GMC that his part time course with a medical school in St Kitts. affiliated with the London College of Medicine, would lead to an acceptable qualification. The GMC’s replies indicated that it would be. He performed his pre-clinical studies by distance learning at IUHS in St. Kitts and then completed his supervised clinical rotations at United Kingdom hospitals. This course clearly represented a huge investment of time and money by the appellant. However, registration of his Primary Medical Qualification (PMQ) was subsequently refused because the registration criteria had been changed.
The appellant therefore brought this appeal against Hickinbottom J’s dismissal of his application for judicial review of the refusal of the GMC to accept his PMQ from a Caribbean university as an acceptable overseas qualification. He argued that the Administrative Court had erred in finding that the GMC had not unlawfully fettered its discretion by defining the acceptable overseas qualification by reference to criteria that did not allow exceptions; that the court below also wrongly held that the retrospective change in the requirement was not irrational or arbitrary even though it imposed blanket criteria, which excluded high quality candidates with the requisite knowledge and skill. The refusal to recognise the appellant’s qualification he claimed was contrary to the right to education conferred by Article 2 of Protocol 1 of the Human Rights Convention. Finally, he contended that the refusal to recognise his PMQ after confirming by email that it would, was a breach of his legitimate expectation.
The Court of Appeal upheld the appeal, and unusually, granted an order specific to the appellant, compelling the GMC to recognise the appellant’s PMQ.
Reasons behind the Court’s ruling
The real substance of this appeal lay in the claim based on legitimate expectation. Accordingly, Court dealt only briefly with the other claims.
The judge below had been correct to decide that the relevant provisions in the 1983 Medical Act gave the GMC a discretion to allow registration only if the criteria were first satisfied. This manoeuvrability was, furthermore, limited to a discretion to refuse registration. That conclusion flowed inevitably from the structure of the statutory provisions. Parliament’s intention was that the GMC, as an expert body, should set minimum criteria for registration. Although the exercise of that judgement had to be reasonable, the boundaries were wide enough to include the criteria that any PMQ had to satisfy. The judge had therefore been correct in concluding that the GMC had not unlawfully fettered his discretion.
The retrospective change was not irrational when examined in its context, which included the absence of universally recognised standards for PMQs. Parliament intended that the GMC had to identify the criteria by which a PMQ would be acceptable, and acknowledged the impracticability of verifying the many PMQs issued around the world. Nor was the lack of transitional provision irrational, as the GMC was entitled to change the criteria with immediate effect if necessary.
The right not to be denied an education under Article 2 of Protocol 1 was not engaged and, therefore, resort to principles of proportionality was not appropriate – R. v Home Secretary, ex parte Brind [1991] 1 AC 696).
On the other hand, the appellant had received a clear, unequivocal, and unqualified assurance from the GMC that if he completed the proposed course in a reasonable time his qualification would be recognised. The fact that the appellant went back repeatedly in an attempt to obtain a clear answer to his question was highly relevant. First, it showed the importance he attached to the information he was legitimately seeking from the GMC. Secondly, it showed that he was trying his utmost to provide a clear statement of his intentions and to obtain a clear unequivocal response to his question. The GMC’s final answer was this:
Thank you for your reply. The General Medical Council accepts the primary medical degree awarded from International University of Health, St Kitts for the purpose of registration, this entitles the student to sit the PLAB exam in order to by [sic] eligible for registration in the UK.
The statutory scheme of the Medical Act 1983 did not exclude the operation of the principle of legitimate expectation in the particular circumstances of this case. The statutory duty had to be exercised in accordance with established principles of substantive fairness. Those principles necessarily took account of the statutory duty and did not lead invariably to the result that effect is given to the legitimate expectation.
For example, if there were a compelling justification for the immediate implementation of a new policy without any transitional measures that would not be an abuse of power and any legitimate expectation would be overridden. … I do not consider that any such incompatibility between the principle of legitimate expectation and the statutory duty arises in the particular circumstances of this case.
