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Decision date: 26 July 2012
Had the General Medical Council acted unlawfully by failing to recognise an overseas qualification it had previously approved?
The claimant (‘P’) challenged 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’), before Hickinbottom J in the Administrative Court.
PMQ’s obtained outside the European Economic Area require the individual concerned to pass a further competency and linguistics examination set by the Professional and Linguistics Assessment Board (‘PLAB’). For all individuals wishing to become a doctor, their PMQ must be accepted in order to be registered with the GMC thus enabling them to commence their foundation training as junior doctors.
The GMC operates under the Medical Act 1983 (‘the Act’). Registration of doctors with overseas qualifications is provided for within sections 21B and 21C of the Act (introduced by the Medical Act 1983 (Amendment) and Miscellaneous Amendments Order 2006 (SI 2006 No 1914)). Reference is made within these provisions to the individual in question having an ‘acceptable overseas qualification’ as defined by section 21B(2) as: ‘any qualification granted outside the United Kingdom, where that qualification is for the time being accepted by the General Council [GMC] as qualifying a person to practise as a medical practitioner in the United Kingdom.’
Following a review process as to what the GMC would consider an acceptable overseas qualification during 2006, the following criteria were outlined. An acceptable primary medical qualification was one which:
‘(a) [Had] been awarded by an institution which is listed in the WHO Directory or otherwise accepted by the GMC.
(b) [Had] been awarded by an institution which has a physical address included in the WHO Directory.
(c) [Had] been awarded after a course of study comprising at least 5,500 hours (or four years full time equivalent study).
(d) [Had] not involved a course of study undertaken wholly or substantially outside the country that awarded the PMQ.
(e) [Had] not involved following a course of study undertaken wholly or substantially by correspondence.’
Subsequent revisions to these criteria were made during 2010. Ultimately, many of the new criteria reflected the above. However, the Directory referred to changed from the World Health Organisation (WHO) to Avicenna (another directory maintained by the WHO which details medical schools and awards) and the references to ‘wholly and substantial’ were amended to specific percentages for clarity and read, for example, as follows:
‘(e) It [i.e. the qualification] must not have involved a programme of study where more than 50% of that study (compared to the standard duration of the qualification) has been undertaken outside the country that awarded the qualification.’
P was a qualified pharmacist. In 2004, P decided he wished to become a doctor. He planned to undertake the necessary studies to become a doctor on a part-time basis whilst continuing his business as a pharmacist. He selected the relevant course at IUHS so that he could undertake online ‘distance-learning’ whilst conducting his clinical rotations as a pharmacist in the United Kingdom. IUHS was listed in the WHO and Avicenna Directories.
P and the GMC entered into email correspondence during November 2004. P was essentially querying whether if he applied to IUHS and completed his pre-clinical training by distance learning but completed his clinical training in the UK this would be accepted by the GMC. The GMC, after a number of emails sent by P seeking clarification, responded on 16 November 2004 that the GMC accepted the ‘primary medical degree’ awarded by IUHS for the purposes of registration. P subsequently enrolled with IUHS and undertook the course from 2005 until 2011. The pre-clinical training was completed by P via distance-learning, albeit P did spend 2 months studying in St. Kitts during 2006. He then undertook the clinical training in various UK hospitals.
P invested over $40,000 undertaking the course which took around 240 weeks to complete (the pre-clinical training took 160 weeks to complete following clinical training comprising 80 weeks).
Importantly, P decided to become a doctor and begun his training prior to the 2006 GMC criteria regarding acceptable overseas qualifications outlined above.
As P was relying on an overseas PMQ, he needed to undertake the PLAB examination and acquire provisional registration with the GMC in order to move onto the next stage of the qualification process which was a foundation programme doctor’s post, which P wished to undertake in the UK.
After enquiring with the GMC on 14 November 2011, the GMC responded by stating that, in line with provision (e) of the 2010 criteria above, P had only undertaken 8 of the total 160 weeks of pre-clinical training in St Kitts, meaning he had studied more than 50% outside of the country awarding the qualification meaning his overseas qualification was not recognised for registration purposes. The GMC explained that there was no statutory right to appeal under the Act as they had not ‘decided’ upon P’s eligibility for registration but had rather responded to his registration query by highlighting the GMC’s criteria that dated back to 2006 which was available on the GMC’s website.
P challenged the decision of the GMC on a number of grounds which centred on two main issues: (i) the criteria on which the refusal was based were unlawful and (ii) the refusal was in frustration of a legitimate expectation.
Hickinbottom J rejected the claimant’s case as follows:
Ultimately, Hickinbottom J sympathised with P but could not rule that the GMC had acted unlawfully.
Clearly, despite the registrant having suffered hardship as a result of the GMC’s decision, statute and the doctrine of legitimate expectation dictated that the GMC’s actions were not unlawful meaning the law could not remedy P’s loss in this instance. This case highlights the importance for individuals intending to register with the GMC to constantly review what the GMC ‘for the time being’ considers to be an acceptable overseas qualification.
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