Case update: Route to registration on the GMC specialist register: CCT or equivalent?

Route to registration on the GMC specialist register: CCT or equivalent?

Mr Nakhla (“N”) had trained and worked in Egypt prior to 2005 and had worked in the UK as a surgeon since 2006.  In 2008 he became a Fellow of the Royal College of Surgeons (FRCS).  He had been working as a locum consultant orthopaedic surgeon with a speciality of lower limbs, in particular knees and hips.  In 2012 he applied to the GMC to become registered as a specialist in Trauma and Orthopaedic surgery. Such registration is a pre-condition for any permanent NHS consultant role.

The Registrar refused his application; this decision was upheld by the GMC’s Registration Appeal Panel (“RAP”), thereafter Judge Faber allowed the subsequent appeal to the County Court following which the GMC appealed to the Court of Appeal.  The appeal was allowed in part.

A brief outline of the legal framework is that doctors who have trained domestically and complete their training to a satisfactory standard are awarded a certificate of completion of training (“CCT”) which automatically, pursuant to section 34L of the Medical Act 1983, provides them with registration as a specialist on the relevant specialist register. 

For those who do not hold a CCT, usually those who have trained or worked abroad, the Postgraduate Medical Education and Training Order of Council 2010 (“the order”) provides an alternative route, in that it provides eligibility to the register for those that are ‘eligible specialists’ as specified in Article 8.  In order to be an ‘eligible specialist’ an applicant must either: be an exempt person holding a recognised specialist qualification, have undertaken specialist training or been awarded specialist qualifications in a recognised speciality which are equivalent to a CCT in the speciality.

N’s original application failed because he was considered to have had limited exposure to certain areas of practice.  12 months later he asked for a review, this was unsuccessful.  On appeal to RAP the appeal was dismissed, in short, their reasoning was that since being in the UK N had specialised in lower limb work at which he was very competent but that he had failed to maintain his competence in the areas required to pass the CCT.

On appeal to the County Court Judge Faber was critical of the RAP and held it to have made a number of errors of law and remitted the matters back to RAP along with her analysis of the principles to be followed. 

On appeal the Court of Appeal held that Judge Faber had been correct in stating that:

• The ultimate object of the enquiry was to determine whether an applicant’s qualifications or training or both were equivalent to the CCT;
• The GMC guidance to applicants could not lawfully prescribe more onerous requirements than Article 8 (2)
• That in considering whether N’s qualifications and/or training were equivalent, it was necessary under Article 8 (5) to take account of experience and knowledge wherever acquired;
• RAP was in error in considering that an inability to show relevant experience or expertise in paediatric orthopaedics precluded N’s application, as it was not one of the 14 key procedures for CCT.

The Court of Appeal disagreed with Judge Faber in a number of material respects:

• The FRCS qualification is not an Article 8 (2) qualification thus providing entry to the register;  it is a specialist qualification. Nonetheless, the real issue is whether it is equivalent to the CCT, which it is not;
• RAP was correct in considering it a relevant matter to consider whether N had maintained his competencies.  The reasoning behind this was primarily that the GMC’s functions of protecting, promoting and maintaining the health and safety of the public is compatible with requiring registered specialists to show broad and up to date knowledge and experience;
• Judge Faber was wrong to dismiss the reliance on PBAs (“performance based assessments”) because otherwise candidates would be able to rely on historic experience with no evidence competence.  Successful candidates will have to demonstrate their competence with an equivalent to a PBA.

Ultimately, apart from the requirement that competency was shown in paediatrics, it was held that RAP had correctly directed itself, and the case was remitted to RAP to be re-determined.

The Court of Appeal highlighted that an appellate jurisdiction will be slow to interfere with factual determinations of a specialist primary fact finding tribunal but was critical of RAP in the following respects: its approach to testing equivalence was described as mechanistic; the requirement of producing contemporaneous evidence of assessment of work undertaken in Egypt (likely to be practically impossible) was said to show a rigidity in approach and a paradox was identified in which the more experienced , more specialised practitioners would find themselves less likely to be successful in applying for inclusion on the specialist registers.

It is exactly because equivalence does not mean identical but of equal value, which is subject to consideration and a value judgement that leaves applicants at the mercy of the GMC’s Registrar and the RAP’s judgement.  As registration is a pre-condition for any permanent NHS consultant role, an unsuccessful application can have a serious impact on a doctor’s career. An advisory note to any practitioners who like N are required to make a similar application, is to ensure that they have suitably addressed all the relevant competencies required, and to provide as much evidence of their work as possible.