R (Legal Remedy UK Ltd) v Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | Mr Justice Goldring |
| Judgment Date | 22 May 2007 |
| Neutral Citation | [2007] EWHC 1252 (Admin) |
| Date | 22 May 2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3360/2007 |
[2007] EWHC 1252 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
The Hon. Mr Justice Goldring
Case No: CO/3360/2007
Tom de la Mare and Nick De Marco (instructed by Leigh Day Solicitors) for the Claimant
Jason Coppel and Joanne Clement (instructed by Seema Barker) for the Defendants
John Cavanagh QC instructed by Jonathan Waters, BMA Legal Director for the BMA
Hearing dates: 17 May 2007
Mr Justice Goldring:
Introduction
"Modernising Medical Careers ("MMC") was described as a major reform of postgraduate medical training. Among other things, it changed the way junior doctors were to become specialists. As from 1 August 2007 any junior doctor who wishes to become a specialist has to take up a run through training ("RTT") post. It is specialty specific and locally managed. For a junior doctor who does not want or succeed in obtaining an RTT post, but wants some specialist training, there is a fixed term specialist training post ("FTSTA"). That is for one year at a time for, generally, a maximum of two years. Instead of these posts being advertised and made locally by the hospital deaneries, these appointments had to be made through a new centralised web based application system: Medical Training Application Service ("MTAS").
There was no pilot for MTAS. On 22 January 2007 it opened for applications. Some 34,000 junior doctors who wished to have specialist training applied. They had, or had mainly, to be in post on 1 August 2007. The introduction of MTAS has resulted in what the British Medical Association ("BMA"), an Interested Party in this application, has rightly described as a dreadful mess. Its extent is still not clear. Although the subject of sustained and understandable criticism, this application for judicial review does not relate directly to the introduction of MTAS. It relates to what was done regarding the dreadful mess. By 6 March 2007 many problems had arisen. The Secretary of State appointed a review body. On 4 April 2007 the review body decided to change MTAS ("modified MTAS"). It is that decision, accepted by the Secretary of State, which the claimant seeks to quash. It primarily alleges it was made without proper consultation, is conspicuously unfair and amounts to an abuse of power.
On 15 May 2007, a day before this application was due to begin, the Secretary of State to all intents and purposes abandoned MTAS. Whatever gloss may be put on it, that decision reflects what are very significant failings in the whole web based application system.
It is not surprising that many junior doctors feel upset, anger and a real sense of grievance.
The claimant company
RemedyUK was formed in November 2006. It is a pressure group of junior doctors. The claimant is a company limited by guarantee which was formed for the purpose of bringing these proceedings. The formation of RemedyUK reflected a loss of confidence by some junior doctors in those who represented them. There was great concern regarding the implementation of the training and employment reforms. Some 10,000 people are registered to receive RemedyUK's communications of which some 7000 are likely to be junior doctors. The rest are consultants or members of the public (for example parents of junior doctors). In March 2007 some 12000 people attended a rally organised by RemedyUK.
The number of training posts involved
Precise numbers do not matter. Of the 34,000 applicants an estimated 1500–2000 are not eligible. The number of posts (both RTT and FTSTA) in England, to which this application only relates, has been put variously at between about 18,250 and 23,000.
The nature of the application
This application is initially for permission to apply for judicial review, the hearing to follow if granted. I grant permission.
The background to and consultation on MMC
Mr. Greenfield, the relevant director in the Department of Health states that MMC was introduced after considerable consultation within the profession and elsewhere. It seems widely, although not universally, to have been supported. Many thought it compared favourably with the old deanery based system which involved sometimes many applications to different deaneries for different jobs. There was a belief by some that there was patronage, discrimination and bias in the old system.
Again, taking it broadly, MMC was to reflect the standards of postgraduate medical education as laid down by the Postgraduate Medical Education and Training Board ("PMETB") pursuant to its statutory responsibilities. It is unnecessary to go into any further detail, although PMETB, as an Interested Party, have helpfully set out their responsibilities in their summary grounds. They have played no other part in these proceedings.
MTAS was the means by which MMC was to be brought into being. Although there are now many criticisms of MTAS (for example relating to the inadequacies of the application form and its scoring system), this application does not seek to quash the decisions leading to MTAS or how the MTAS system was intended to operate.
How MTAS should have operated
Different parts of "Modernising Medical Careers: a new era in medical training," refer to a "fair and transparent" system under which "[p]rogress through each stage of training [was to be] through open and fair competition."
The applicant's guide
The applicant's guide was issued on 10 January 2007. As it is put in the foreword, signed by the Chief Medical Officers for England and Wales:
"The new specialty…[programme is] supported by an online recruitment service. Application will be through…MTAS where you can submit a single electronic application…"
The application through MTAS was to be to "units of application ["UofA]." They are usually the postgraduate deaneries and are:
"…responsible for the recruitment and selection process for the specialty…"
There is a section dealing with specialty training.
"In general, you will have the opportunity to make four applications in the following specialty/UofA combinations:
i) up to 2 specialities/specialty groups, each in up to 2 UoAs
ii) 1 specialty/specialty group in up to 4 UoAs
iii) Up to 4 specialties/specialty groups in 1 UoA…
You do not have to use all your choices, but it recommended that you do if at all possible in order to maximise your chances of success. However, you should choose carefully…
You will be required to rank all your choices in strict order of preference. If successful, you will be allocated to your highest choice/UofA/specialty/entry level combination, depending on your interview score and the number of training opportunities available…
…The UofAs will not be able to see which other UofAs or specialties you have applied to…
…If you meet the entry criteria…your application will then be considered for shortlisting. Shortlisting is done by a panel of trained selectors, using selection criteria stated in the relevant person specification to score each application. The highest scoring short-listed applicants will be invited to interview, depending upon the number of training opportunities available…
Those applicants invited to interview will be further assessed by a selection panel of trained selectors against selection criteria stated in the relevant person specification. Finally, the interviewed applicants with the highest scores will receive an allocation for a training opportunity…at the specific entry level depending on the number of opportunities available…
If you are not offered a training opportunity in Round 1, you will be invited to re-apply in Round 2…
…FTSTAs
FTSTAs are fixed term contracts for one year and will only provide training in the early years of specialty training-ST1 and ST2 [mostly]…
You will be able to express…interest in FTSTAs in two ways.
i) apply for FTSTAs only
ii) apply for training programmes and identify…that you would like to be considered for an FTSA if you are not selected…"
There are a number of other things mentioned on the application form. Shortlisting is to be scored independently by a minimum of two trained panel members. Among the documents likely to be required for interview are signed verified references where available. Evidence to support what is asserted in the application form should be brought to the interview to support statements made on the application form and to prove the competences there referred to. A collection of evidence ("portfolio") can be used as evidence of having achieved foundation programme competencies (for those applying at Stage 1).
The checking of eligibility is called longlisting. A person who is not eligible should not reach the shortlisting stage.
As to the interview itself:
"The minimum standard for a selection interview is 30 minutes of face-to-face selection time…
The selection panel will consist of trained selectors, including specialists in the relevant specialty."
Finally:
"If successful you will be allocated to your highest choice training opportunity…"
For those not successful in round 1, a second round is envisaged.
The application form
There is a standardised "Person Specification" for each specialty and stage. It sets out the "essential" and "desirable" criteria of...
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