The Queen (on the Application of Sailesh Patel) v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones,Lord Justice Lloyd,The Master of the Rolls,Lord Justice Pitchford,Lord Justice Sullivan,The Chancellor |
| Judgment Date | 27 March 2013 |
| Neutral Citation | [2013] EWCA Civ 1938,[2013] EWCA Civ 327,[2013] EWCA Civ 359 |
| Docket Number | Case No: C1/2012/2249,Case No: A3/2012/1227 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 March 2013 |
[2013] EWCA Civ 327
The Master of the Rolls
Lord Justice Lloyd
and
Lord Justice Lloyd Jones
Case No: C1/2012/2249
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT, QUEENS BENCH DIVISION
MR JUSTICE HICKINBOTTOM
CO/1518/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Drabble QC and Kate Beattie (instructed by Neumans LLP) for the Appellant.
Eleanor Grey QC (instructed by The General Medical Council) for Respondent
Hearing dates: 26 & 27 February, 2013
This is an appeal by Dr. Sailesh Patel against the order of Hickinbottom J. dismissing his application for judicial review of the decision of the General Medical Council ("GMC") to refuse to accept his Primary Medical Qualification ("PMQ") obtained from the International University of Health Sciences, St. Kitts and Nevis ("IUHS") as an acceptable overseas qualification pursuant to section 21C Medical Act 1983. The effect of this refusal has been that the appellant has not been permitted to progress his application for registration with the General Medical Council. As a consequence he has been unable to take a competency and linguists examinations set by the Professional and Linguists Assessment Board ("PLAB") or undertake a placement in a National Health Service hospital for Foundation Year 1.
The Regulatory Framework.
Under the Medical Act 1983 the GMC is charged with the responsibility for registering and regulating doctors within the United Kingdom pursuant to its primary purpose "to protect, promote and maintain the health and safety of the public" (section 1(1A).) Section 2 requires the Registrar of the GMC to keep a register of medical practitioners. All medical practitioners are required to be registered with full or provisional registration. Provisional registration enables a doctor to practise under supervision and only as part of an "acceptable programme" designed to show that he possesses the knowledge, skills and experience necessary for practising as a fully registered medical practitioner.
Sections 21B and 21C, introduced by the Medical Act 1983 (Amendment) and Miscellaneous Amendments Order 2006 (SI 2006 No. 1914) make provision for the registration of doctors who have overseas qualifications. Section 21B(1) concerns registration as a fully registered medical practitioner. It provides:
"(1) Where a person satisfies the Registrar:
(a) that he holds, or has passed all the qualifying examinations necessary for obtaining, an acceptable overseas qualification;
(b) that he possesses the knowledge, skills and experience necessary for practising as a fully registered medical practitioner in the United Kingdom;
(c) that his fitness to practise is not impaired;
(d) unless he is an exempt person, that he has the necessary knowledge of English, and
(e) that, where:
(i) the person is an exempt person
(ii) his acceptable overseas qualification was, or would have been, granted otherwise than in a relevant European State, and
(iii) that qualification, or the person's having passed those examinations, has not previously been accepted by a relevant European State as qualifying the person to practise as a medical practitioner in that State, that qualification is, or would have been, evidence of medical training which satisfies the [basic medical training] requirements of [the relevant European Directive],
that person shall, if the General Council think fit so to direct, be registered under this section as a fully registered medical practitioner."
The definition of "acceptable overseas qualification" was originally provided by section 22(4):
"In this Act an "acceptable overseas qualification" means any qualification granted outside the United Kingdom and for the time being accepted by the General Council for the purposes of this section as furnishing a sufficient guarantee of the possession of the knowledge and skills requisite for the practice of medicine under the supervision of a person who is registered as a fully registered medical practitioner."
However, the 2006 Order substituted a new definition in section 21B(2);
"In this Act, an "acceptable overseas qualification" means any qualification granted outside the United Kingdom, where that qualification is for the time being accepted by the General Council as qualifying a person to practise as a medical practitioner in the United Kingdom."
Section 21C concerns provisional registration of doctors with an overseas qualification. Section 21C(2) provides:
"A person who satisfies the Registrar -
(a) of the matters specified in paragraphs (a), (c), (d) and (e) of subsection (1) of section 23B above so far as they are matters of which the Registrar would in the person's case have to be satisfied in order for the person to be eligible to benefit from a direction under that subsection; and
(b) that he possesses the knowledge and skill requisite for embarking upon an acceptable programme for provisionally registered doctors,
may apply to the General Council to be provisionally registered under this section and, if the Council think fit so to direct, that person shall be so registered."
Where an application for registration is refused by the Registrar, there is a right of appeal to the Registration Appeals Panel ("RAP"), a statutory committee of the GMC.
There are no universally accepted criteria for accreditation of medical schools or PMQs. Prior to 1995, the GMC maintained its own list of approved qualifications. However, in October 1995 the Registration Committee concluded that it could not continue to maintain the list because of the practical difficulties of assessing or verifying PMQs available around the world. In its place the Committee used a list of qualifications published in the World Health Organisation ("WHO") Directory, which it accepted as "acceptable overseas qualifications" without any further assessment.
In 2005 investigative journalism by the BBC identified some serious abuses although, I emphasise, none involved IUHS. The Registration Committee found that a number of UK based private medical schools claimed affiliations to universities listed in the WHO Directory when in fact they had no such links at all. Some qualifications were awarded by universities which had no physical address identified in the WHO Directory. Furthermore, the Registration Committee was concerned that some qualifications granted by medical schools which appeared in the WHO Directory were awarded following a course of study which was undertaken wholly or substantially in another jurisdiction, or with substantially less than the 5,500 hours or 6 years usual for PMQs obtained in the United Kingdom or which was pursued by way of correspondence courses or distance learning undertaken without face to face teaching.
At its meeting of 13 th June 2006 the Registration Committee concluded that there was no suitable alternative to continuing to use the WHO Directory. However, it decided to revise the criteria for an "acceptable overseas qualification". The new criteria are set out in the minutes:
"15. The Committee therefore agreed a revised definition of an acceptable primary medical qualification, as one which:
(a) Has been awarded by an institution which is listed in the WHO Directory or otherwise accepted by the GMC.
(b) Has been awarded by an institution which has a physical address included in the WHO Directory.
(c) Has been awarded after a course of study comprising at least 5,500 hours (or four years full time equivalent study).
(d) Has not involved a course of study undertaken wholly or substantially outside the country that awarded the PMQ.
(e) Has not involved following a course of study undertaken wholly or substantially by correspondence.
16. The Committee noted that an application which does not comply with the requirement of paragraph 15(a) would be refused on the grounds that it is not an acceptable qualification. An application which complied with paragraph 15(a), but lacked compliance with one or more of the requirements at paragraphs 15(b)–(e), would be subject to further review. The Office was asked to clarify the position in relation to this process."
In the years that followed the GMC encountered two difficulties with the 2006 criteria. First, the requirement that the relevant course must not be "wholly or substantially" undertaken outside the country of the award or by correspondence lacked certainty. Secondly, while the Registrar took the view that each of the criteria set out in sub-paragraphs 15(a)–(e) was a precondition of acceptance of a qualification, in three appeals the RAP concluded that only the requirement in 15(a) was mandatory and that the reference in paragraph 16 to "further review" gave it a discretion to look at the merits of the application on a case by case basis. As a result it allowed three appeals and permitted doctors to be registered despite the fact that they had not satisfied one or more of the criteria set out in paragraphs 15(b)–(e). However, the GMC has maintained throughout and still maintains there was no such discretion under the 2006 criteria.
Accordingly on the 13 July 2010 the GMC again revised its criteria for "acceptable overseas qualifications". On this occasion the reference directory was changed from the WHO Directory to the Avicenna Directory. In addition, the requirements that the qualification had not involved a course of study undertaken "wholly or substantially" outside the country that awarded it or had not followed a course of study undertaken "wholly or...
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