The King (on the application of Mark Tattersall) v NHS England
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 05 July 2023 |
| Neutral Citation | [2023] EWHC 1677 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1477/2021 |
[2023] EWHC 1677 (Admin)
Mr Justice Fordham
Case No: CO/1477/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER
Benjamin Hawkin (by Direct Access) for the Claimant
Edward Morgan KC (instructed by Hill Dickinson LLP) for the Defendant
Hearing dates: 17/5/23 & 18/5/23
Further evidence filed by the Claimant: 6/6/23
Draft judgment circulated: 26/6/23
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
INTRODUCTION
This case is about a provision which I will call “the Curtailment Provision”. It is found within a scheme called the “Gold Guide”, whose full title is “Reference Guide for Postgraduate Foundation and Specialty Training in the UK”. The Gold Guide is a published document available online. It confers the right of appeal to which the Curtailment Provision relates. The Curtailment Provision, which first appeared in the 8 th edition of the Gold Guide (31.3.20) (“GG8”) at §4.173, says:
Where there have been reasonable endeavours to progress the appeal and the appeal has not taken place within one year of the decision date, then the original decision is final. The Postgraduate Dean has discretion to consider requests for a reasonable postponement of the appeal beyond a year from the decision date in exceptional circumstances .
These are judicial review proceedings. The Claimant is Dr Tattersall. The decision which is the target for judicial review was made on 26.1.21. I will call it “the Impugned Decision”. The decision-maker was Professor Jane Mamelok, acting as Postgraduate Dean (“PD”) for “HENW”. HENW is Health Education England (“HEE”)'s North West Region (“NWR”). At the substantive hearing, I granted an unopposed application, pursuant to CPR19.4(1), for NHS England to replace HEE as Defendant. That was appropriate because HEE's functions have now (as of 1.4.23) transferred to NHS England, against whom any Order of this Court would necessarily now need to be made. When in this judgment I say “HEE”, I mean “HEE, now NHS England”. In making the Impugned Decision, Professor Mamelok was dealing with an appeal (“the Appeal”) which Dr Tattersall had commenced on 20.8.15. The Appeal challenged a decision taken on 7.8.15 (“the Appealed Decision”). That decision had been taken by Professor Mamelok's predecessor as PD, Professor Jacky Hayden. In the Impugned Decision, Professor Mamelok decided as follows: that the Curtailment Provision was applicable to the Appeal; that there had been reasonable endeavours by HEE to progress the Appeal; that the Appeal had not taken place within one year of the decision date (7.8.15); that it was not appropriate to exercise the discretion to grant any further reasonable postponement; that the Appealed Decision was therefore “final”; and that she would not in those circumstances take any further steps such as convening an Appeal Panel and scheduling an appeal hearing.
The central issues and arguments which I have to address fall within three basic heads. These reflect three alternative bases on which Dr Tattersall challenges the Impugned Decision. They concern the lawfulness (see §21 below), applicability (§32 below) and application (§40 below) of the Curtailment Provision. Before turning to each of these, I am going to give my description of some contextual features of the case as I saw them.
Training
HEE is a public body responsible for leading and supervising education, training and workplace development in the UK health sector. That includes accredited postgraduate training (in this judgment, “Training”). It includes implementing Training in accordance with the curricula approved by the General Medical Council (“GMC”) which body regulates doctors (GG8 §2.26). HEE is organised into regions, of which HENW is one, each of which has a PD. Under the Gold Guide, the PD – which includes the PD's nominee (GG8 §1.8) – discharges a number of responsibilities, including “quality management” of Training programmes (GG8 §2.33) and “decision making” (GG8 §1.2). Suppose I am a postgraduate doctor pursuing a relevant specialism and wishing to become a Consultant. Training is a route by which I can progress towards that goal. That progress will mean securing relevant Training appointments, with Training contracts, as a “Trainee”. It will mean my ‘clocking-up’ the relevant number of years of Training, for example 7 years. The content of the Training will be regulated by the Royal College in my specialism. Once I have completed the relevant number of years' Training, I can then take an examination, with a view to achieving a Fellowship with the Royal College. If I am successful in achieving that Fellowship, I can then receive entry on the specialist Register held by the GMC. That will mean I have become eligible to be appointed as a Consultant.
During my Training, I need to hold a National Training Number (“NTN”). An NTN is described (GG8 §3.35) as “held for so long as” a Trainee is in speciality Training or is out of programme on statutory grounds or by agreement with the PD. One NTN may be replaced with another, for example if I move from Training in one HEE region to another. If I take ‘time out’ of my Training, there is a question about whether I can then return and continue, keeping the ‘credit’ of the Training which I had previously clocked-up. Suppose I had clocked-up three years of Training before my ‘time out’. A question would be whether I can restart as if I were now in year 4. The answer to that question will depend on the circumstances. It is not difficult to see why. I may have gone ‘cold’. The curriculum may have ‘moved on’. The Royal College will need to be involved in the decision whether I should resume, keeping my clocked-up credit.
During my Training there are ‘regulatory’ aspects to my position. I will be the subject of a cycle of important annual reviews, known as the Annual Review of Competence Progression (“ARCP”). The ARCP involves decision-making processes which can give rise to certain ‘negative outcomes’ for a Trainee. A negative ARCP outcome can be the subject of an appeal under the Gold Guide. During my Training – or if my Training has stopped and I am working in the health sector outside the Training programme – I will remain subject to the GMC's fitness to practise regime. I will also remain subject to a programme of ‘continuing professional development’ requirements, known as “Revalidation”. Certain declarations required for Revalidation are included in the ARCP (see GG8 §3.47). One of the consequences of regimes such as ARCP, fitness to practise and Revalidation is that a Trainee needs a “designated body” and a “responsible officer”. For a Trainee in the NWR, HENW would be the designated body and the PD for HENW would be the responsible officer. A Trainee who remains within the Training regime in the NWR will generate a volume of important information and materials, including from ACRP and Revalidation, to which HENW would have access.
Dr Tattersall
Dr Tattersall's specialist area is Obstetrics and Gynaecology (“O&G”). The relevant Royal College for that specialism is the Royal College of Obstetrics and Gynaecology. Dr Tattersall qualified to practise medicine in 2001. He began working in O&G in 2002. In 2005 he was appointed as a Specialist Registrar for a term of 5 years in London, where he had a Research Training Fellowship from 2006 to 2010. In January 2011, Dr Tattersall took up a 4 year appointment as a Clinical Lecturer at the University of Liverpool. That role combined academic Training at the University of Liverpool with clinical Training at the Liverpool Women's Hospital, a hospital run by Liverpool Women's Hospital NHS Trust. In conjunction with his Training, Dr Tattersall was issued with an NTN (and, says Mr Morgan KC, a replacement NTN when he moved from London to Liverpool).
Dr Tattersall was on a recognised pathway towards an examination-based Fellowship of the Royal College of O&G and entry into the GMC's Specialist Register for O&G. If all went to plan, Dr Tattersall would emerge from that pathway as a Consultant in O&G. However, as things stand, all has not gone according to plan. In the event, Dr Tattersall did not participate in clinical Training after 2010, and in any Training after December 2014. The circumstances in which that position arose are controversial. As everyone agrees, they do not call for any finding by this Court in these proceedings. In the event, Dr Tattersall has continued to discharge clinical duties, as a senior clinician within the specialty of O&G, in a variety of locum capacities.
The Appeal
The Appealed Decision (7.8.15) was communicated to Dr Tattersall's British Medical Association (“BMA”) representative, Ms Joanne Alliston. By the Appealed Decision, Professor Hayden (as PD of HENW) had concluded that Dr Tattersall's NTN should be withdrawn on the basis of “non-compliance” with the requirements for registering or maintaining his registration with the PD. In the Appealed Decision, Professor Hayden was invoking §6.37c of the Gold Guide 5 th Edition of May 2014 (“GG5”), which provided:
The [national] training number will be withdrawn when a trainee… does not comply with the requirements for registering or maintaining their registration with the Postgraduate Dean .
The Gold Guide described a right of appeal as follows (GG5 §7.148), with what I observe is a refreshing use of “their” and “they”:
Where the Postgraduate Dean indicates their intention to remove a trainee national training number because of non-compliance with the arrangements under which they hold the...
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