E-Regulator: R (on the application of Patel) v General Medical Council [2012] EWHC 2120 (Admin)

CASE SUMMARY

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.

Background

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’s Training

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’s Claim

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:

1. P contended that the 2010 criteria were unlawful because they fettered the GMC’s discretion to register a doctor. This discretion is provided for by the Act in that an ‘acceptable overseas qualification’ is defined as being a qualification the GMC recognises as ‘qualifying a person to practise as a medical practitioner in the United Kingdom.’ (section 21B(2)). According to Hickinbottom J, the GMC’s 2010 criteria satisfied this discretion dictated by the Act by enabling the GMC to outline what would be an acceptable PMQ for registration. The Act itself enabled the GMC to draft the criteria owing to the duty imposed on the GMC by the Act to identify acceptable overseas qualifications. The criteria did not, therefore, fetter the GMC’s discretion.
2. Hickinbottom J also ruled that the 2010 criteria were not unreasonable. P alleged that there was no ‘rational link between any legitimate aim identified by the GMC and the requirement that at least 50% of an applicant’s programme of study be in the country awarding the PMQ’ (para 61). Hickinbottom J stressed the need for the Court to act cautiously when ruling that a standard set by a specialist body and worked out over several years was irrational and found against P. The provision was thought to ensure sufficient control and supervision by the institution awarding the qualification.
3. P had also contended that the 2010 criteria, in particular the 50% requirement referred to above, was disproportionate when compared with the reasons as to why that requirement was needed, inter alia, to prevent student tourism whereby students move from university to university to obtain a qualification. Hickinbottom J highlighted the fact that proportionately is a concept derived from Europe and the European Convention on Human Rights. P argued that Article 2 of Protocol 1 of the Convention, the right to education, had potentially been breached by the GMC thus engaging the proportionality assessment. Relying on R (Sivills) v General Social Care Council [2007] EWHC 2576 (Admin), Hickinbottom J highlighted the limited scope of Article 2. P’s inability to register did not inhibit his enjoyment of the right guaranteed by Article 2 and in turn the criteria were not disproportionate.
4. P relied upon the email from the GMC dated 16 November 2004 to argue that the doctrine of legitimate expectation operated in this instance. Hickinbottom J appreciated P’s frustrations but concluded that, in law, the email did not raise a legitimate expectation. It was not an abuse of power for the GMC to no longer recognise P’s PMQ. The main emphasis was on the fact section 23B(2) states, ‘where that qualification is  for the time being (emphasis added) accepted by the General Council [GMC]’. The GMC were not required by statute, nor was it reasonable for the claimant to expect that they were required, to not alter their criteria for acceptable PMQs during P’s period of training. To hold the GMC to the representation they expressed in their email of 16 November 2004 would usurp the legislator’s intention. It was also believed to be in the public interest to ensure the criteria are kept under review, particularly in light of the overarching aim of the GMC under section 1 (1) of the Act to protect the health of the public.

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. 

Charlotte Judd