Lasting Powers of Attorney: recent key developments
Bhatia v General Medical Council  EWHC 3221 (Admin)
On 15 November 2016, Mr Justice Edis considered an appeal in relation to the Registration Appeal Panel’s (RAP) refusal to grant full registration to Ms Bhatia (the appellant). The appeal centred on the interpretation of the appellant’s internship and patterns of experience in accordance with the GMC’s guidance.
The appellant trained as a doctor in India. On 16th September 2015 she made an application to the General Medical Council (GMC) for full registration as a person with an overseas qualification. She provided details as follows to the GMC about her training/experience:
Section 21B of the Medical Act 1983 (the Act) states (amongst other matters):
(1) Where a person satisfies the Registrar…….
(b) that he possesses the knowledge, skills and experience necessary for practising as a fully registered medical practitioner in the United Kingdom;
that person shall, if the General Council think fit so to direct, be registered under this section as a fully registered medical practitioner.
Whilst the GMC accepted that the appellant had shown that she had the knowledge and skills, they rejected any assertion that she had demonstrated the necessary experience.
The GMC’s guidance in relation to those seeking registration in force as at September 2015, states:
To be eligible for full registration you must have satisfactorily completed either Foundation Year 1 (F1) in the UK, or a period of pre-graduate or postgraduate clinical experience that provides an acceptable foundation for future practice as a fully registered and licensed medical practitioner. This will usually be referred to as an internship.
To be acceptable your internship must be either
A 12 month programme that includes a minimum of three months in surgery and three months in medicine. If the programme was not completed consecutively over a period of 12 months, or was completed more than 2 years after graduation, your application may be delayed while we investigate this.
In a further document called "Applying for registration as an International Medical Graduate" the above was repeated and followed up by:
Please Note: Our requirements for acceptable patterns of training/experience are currently under review. The fact that your training/experience may be acceptable currently does not mean that it will be acceptable in the future.
Whether your training/experience is acceptable will be decided at the point of dealing with an application for registration. The information on this page is subject to change. You are advised to check these pages regularly for up to date information. Any application for full registration will be assessed in line with the legislation, procedures and criteria in place at the time such an application is received.
The appellant contended that her application should be decided under the September guidance because of the date when it was received. This point was conceded on appeal by the GMC.
The subsequent guidance was issued in December 2015 (the December Guidance). The December Guidance stemmed from a meeting of the Strategy and Policy Board (the Board) of the GMC on 6 October 2015. Specifically, modernisation of the registrations process by adopting two new patterns of experience which "better reflect the purpose of assessing if the breadth, type and duration of experience undertaken by an overseas doctor is comparable to that expected from a UK graduate at the point of full registration" should be adopted. These two new patterns were called Pattern A and Pattern B.
The current appeal relates to Pattern A which requires:
A minimum of 12 months' continuous medical practice in a training programme undertaken immediately prior to or immediately following graduation, which includes
at least three months of practice in medicine and three months in surgery
all periods of practice must be continuous, uninterrupted internship rotations (or equivalent) completed as part of the training programme and posts which involve observation, such as clinical attachments, shadowing, observerships, and clerkships, rather than active medical practice with direct patient contact are not acceptable.
The applicant cannot be absent for more than 20 days in any 12 month period (in addition to annual leave, which can be up to 5 weeks)
….the first 12 months or practice should otherwise be uninterrupted with a maximum break thereafter of no more than 12 months before returning to complete the programme.
The Assistant Registrar (AR) refused the appellant’s application on 8 December 2015. He set out the December Guidance and referred to transitional arrangements which were to the effect that an applicant who fails to satisfy the new Guidance will be considered under the old Guidance.
He identified that the appellant had completed the 12 months required under the old Guidance but had done so over a period of approximately 32 months. The AR noted that the internship had been interrupted in the last month or so before it ended. The appellant had then gone to the USA. She had thus come to resume and complete her internship after a gap of about 14 months.
The AR found that the appellant had completed 12 months training but that it was disjointed. Although the old Guidance did not expressly state that the training must be completed in a continuous or uninterrupted period of 12 months, it did require a "programme", which in his view the appellant had not completed.
The RAP’s decision can be summarised as follows:
Applying the December Guidance the appellant did not have a pattern of experience necessary to practise as a fully registered medical practitioner.
Applying the old guidance, the overall effect was the same, in that she had had a 14 month gap which was: “simply too long to enable us to exercise any residual discretion in favour of the appellant under either of the two sets of Guidelines referred to."
The grounds of appeal can be summarised as follows:
Ground 1: the RAP Panel applied the wrong guidance and ought not to have been influenced by the policy which persuaded the Board to adopt new guidance because that post-dated the date of the application.
Ground 2: the RAP misconstrued the word "programme" as it appears in the old guidance and relied on that construction to support its conclusion that there is no difference between the two sets of guidance.
Ground 3: the appellant’s 14 month gap included a 10 month period of study and the clinical electives in the USA and therefore should not be given any significance.
Mr Justice Edis noted that there was an obvious inconsistency between grounds 1 and 3 in that either the December Guidance was relevant or it was not.
Mr Justice Edis confirmed that applying Civil Procedure Rule 52.11(3), he must allow the appeal where the decision of the lower court was (a) wrong or (b) unjust because of a serious procedural or other irregularity in the proceedings before the lower court,
At the outset, Mr Justice Edis determined that:
The proper question was whether the appellant’s internship was an adequate basis to show experience for the purposes of s.21B(1)(b) of the Act.
As to the RAP’s contention that the old and new guidance were the same, Mr Justice Edis concluded that the RAP: “imported the far more prescriptive terms of the new Guidance into its decision”. And further that: “neither the [AR] nor the [RAP] addressed what may seem to be the main point in the case: the appellant did complete almost a whole period of 12 months internship before graduation…It is hard to see how the gap between the internship which was all but complete and the small additional part which was completed after that gap made much difference to her experience…”.
In short, Mr Justice Edis concluded that the RAP: “fell into error in finding that there was no difference between the two sets of Guidance and thereby failing to ask the question required by the old Guidance, and failing to answer it”.
He therefore upheld ground 2 and quashed the decision. He remitted the case back to the AR for him to refer it to a RAP on a proper application of the law.
This case highlights the importance of decision-makers referring to the correct guidance when considering applications for registration and other matters. In this case, the decision-makers erred by importing into the old guidance elements of the new guidance, which were more prescriptive as to the pattern or ‘continuity’ of experience required by applicants.
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