General Medical Council v Amgad Nakhla
Jurisdiction | England & Wales |
Judge | Lord Justice Lewison,Lord Justice Burnett,Lord Justice Longmore |
Judgment Date | 28 November 2014 |
Neutral Citation | [2014] EWCA Civ 1522 |
Docket Number | Case No: B2/2014/2008 |
Court | Court of Appeal (Civil Division) |
Date | 28 November 2014 |
[2014] EWCA Civ 1522
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
Her Honour Judge Faber
3BF02118
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Lewison
and
Lord Justice Burnett
Case No: B2/2014/2008
Mr Alan Maclean QC & Ms Jessica Boyd (instructed by GMC Legal Department) for the Appellant
Mr Amgad Nakhla (not represented) the Respondent
Hearing dates: 19 and 20 November 2014
Introduction
Mr Nakhla has been practising as a surgeon in the UK since May 2006. Before 2005 he practised as a surgeon in Egypt, which is also where he trained. In November 2008 he was accepted as a Fellow of the Royal College of Surgeons, having passed the FRCS (Trauma and Orthopaedics) examination. He has been working as a Locum Consultant Orthopaedic Surgeon at Basildon and Thurrock University Hospitals since April 2012. His specialty is in the lower limbs, especially knees and hips. In January 2012 he applied to the General Medical Council (the "GMC") to be registered as a specialist in Trauma and Orthopaedic Surgery ("T & O"). Registration is a necessary pre-condition to permanent appointment as an NHS consultant. His application was rejected by the Registrar, whose decision was upheld by the GMC Registration Appeal Panel ("the RAP"). He appealed to the county court against the decision of the RAP; and on 30 May 2014 HH Judge Faber allowed his appeal. The GMC now appeal to this court.
The legal framework
The GMC is a body corporate, established by statute, whose main objective is to protect, promote and maintain the health and safety of the public: Medical Act 1983 s. 1 (1A). It is required by statute to have a number of committees, including a Registration Panel and the RAP.
Part IVA of the Act deals with Postgraduate Medical Education and Training. Under section 34L of the Act the Registrar must:
"award a certificate of completion of training (CCT) to any person who applies to the General Council for that purpose if—
(a) that person is a registered medical practitioner;
(b) the Registrar is satisfied that that person has been appointed to, and has satisfactorily completed, a course of training leading to the award of a CCT; and
(c) that course of training has been approved by the General Council under section 34I(1)(a)."
The award of a CCT entitles its holder to be entered on the register of specialist practitioners. This register is kept by the Registrar under section 34D of the Act, which provides:
"(1) The General Council shall keep a register of specialist medical practitioners (known as "the Specialist Register").
(2) The Specialist Register shall, subject to subsections (4) and (5), contain the names of—
(a) registered medical practitioners who hold a CCT in a recognised specialty;
(b) …; and
(c) registered medical practitioners falling within such other categories as the Privy Council may by order specify.
(3) …
(4) A person falling within any of paragraphs (a) to (c) of subsection (2) shall only be included in the Specialist Register if they have applied to the Registrar for the purpose and have paid any fee specified in regulations under section 34O."
Thus holding a CCT is not the only route to entry on the Specialist Register. In exercise of the power contained in section 34D (2) (c) the Privy Council made the Postgraduate Medical Education and Training Order of Council 2010 ("the Order"). Article 7 of the Order provides that persons are eligible to be registered in the Specialist Register if they are "eligible specialists as specified in article 8". Article 8 provides, so far as relevant:
"(1) Persons are eligible specialists for the purposes of article 7(1)(a) if they are exempt persons and hold a recognised specialist qualification granted outside the United Kingdom as specified in article 10.
(2) Subject to paragraph (4), a person ("S") is an eligible specialist for the purposes of article 7(1)(a) if S does not fall within paragraph (1) but has—
(a) undertaken specialist training; or
(b) been awarded specialist qualifications,
in a recognised specialty and satisfies the Registrar that that specialist training is, or those qualifications are, or both when considered together are, equivalent to a CCT in the specialty in question.
(3) …
(4) …
(5) If S…—
(a) …
(b) has acquired specialist medical experience or knowledge, wherever obtained,
the Registrar shall take account of … that experience or knowledge, when determining the adequacy of the training or qualifications under paragraph (2)…."
A person who satisfies these requirements is given a Certificate of Eligibility to Specialist Registration (a "CESR", pronounced as in Julius). Since the Specialist Register "shall" contain the names of those who fall within the specified categories, it seems to me to follow that if an applicant satisfies the criteria in article 8 of the Order, the Registrar must include his name in the Register.
A decision not to include someone's name in the Specialist Register is an "appealable decision": Medical Act 1983 Schedule 3A para 2A. The appeal lies to the RAP: Schedule 3A para 4 (1). Paragraph 4 (8) provides:
"(8) In disposing of an appeal under this paragraph, a Registration Appeals Panel may determine to—
(a) dismiss the appeal;
(b) allow the appeal and quash the decision appealed against;
(c) substitute for the decision appealed against any other decision which could have been made by the person making the decision;
(d) remit the case to the person making the decision to dispose of in accordance with the directions of the Registration Appeals Panel,…"
An appeal from the RAP is given by paragraph 5:
"(1) Where—
(a) a Registration Appeals Panel determines an appeal under paragraph 4 above; and
(b) the Panel's determination is any determination other than a determination under paragraph 4(8)(b) above to allow the appeal and quash the decision appealed against,
the person concerned may, before the end of the period of 28 days beginning with the date on which notice of the determination was given to him under paragraph 4(9), appeal against the determination to the [county] court."
The powers of the appeal court are also given in Schedule 3A paragraph 5. In addition to the power to dismiss or allow the appeal, or to remit the case to the RAP, the appeal court may.
"substitute for the determination appealed against any other determination which could have been made by the [RAP]"
Thus the court has power to order the Registrar to include a medical practitioner in the Specialist Register. The exercise of that power would only be appropriate where the court is satisfied that there could, realistically, only be one outcome were the appeal to be remitted to the RAP: Hollingworth v Specialist Training Authority of the Medical Royal Colleges [2003] EWCA Civ 452 at [28].
Appeals to the courts
Unlike many appeals to the court from specialist tribunals, an appeal to the county court from the RAP is not limited to an appeal on a point of law.
The county court, acting in its appellate role, will normally conduct a review of the decision of the RAP rather than a rehearing: CPR Part 52.11 (1). It will allow an appeal under CPR Part 53.11 (3) where the decision under appeal was (a) wrong or (b) unjust because of a serious or other procedural irregularity.
The first general point that I wish to make arises out of the fact that an appeal to this court is a second appeal. In appeals of that kind the real question for this court is whether the intermediate appeal court (here the county court) was entitled to interfere with the decision of the first tier tribunal (here the RAP). In other words the focus of this appeal is whether the RAP were wrong: Procter & Gamble UK v HMRC [2009] EWCA Civ 407; [2009] STC 1990.
The second general point is about appeals on fact. An appeal from the RAP is not limited to an appeal on a question of law, but that does not dilute the reluctance which an appeal court should have about overturning factual conclusions. Factual conclusions for this purpose include not only findings of primary fact but also evaluations of those facts, value judgments based on them, and the application of the facts to legal standards. The appeal court should not retry the case on the transcript. All this is contained in the recent judgment of the Supreme Court in McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477 as well as in Procter & Gamble UK at [9] (Jacob LJ), [60] (Toulson LJ) and Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642, [2003] 1 WLR 577 at [16] (Clarke LJ). Moreover where, as here, the appeal is an appeal from a specialist tribunal an appeal court's reluctance to intervene on questions of expertise should be all the greater: Procter & Gamble UK at [11] (Jacob LJ), [48] (Toulson LJ). This tribunal included a medically qualified member, and received advice from a specialist adviser.
The question to be determined
The first route to entry on the Specialist Register is by holding a CCT. One would naturally expect that alternative routes would be broadly equivalent. That this is so is, in my judgment, borne out by article 8 (2) of the 2010 Order, because the purpose for which the Registrar must consider a practitioner's specialist training and/or qualifications is to decide whether they are " equivalent to a CCT in the specialty in question".
The next step, therefore, is to see what is required in order to qualify for the award...
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Shalaby v General Medical Council
...of a relatively unusual kind, but the circumstances were considered quite recently by this court in Nakhla v General Medical Council [2014] EWCA Civ 1522, and I am indebted to the judgments in that case for explaining the nature of the jurisdiction of the courts. The position is that there ......