Patel, R (On the Application Of) v General Medical Council

The Claimant, Sailesh Patel, challenges the decision of the General Medical Council (“the GMC”) to refuse to accept his Primary Medical Qualification (“PMQ”), obtained from the International University of Health Sciences, St Kitts and Nevis (“IUHS”). Where a PMQ is granted outside the European Economic Area, a doctor also has to pass a competency and linguistics examination set by the Professional and Linguistics Assessment Board (“PLAB”) before progressing; but acceptance of a PMQ is a precondition to being registered with the GMC and commencing foundation training as a junior doctor.

The grounds of challenge, to which I shall come in due course, are several; but are focused upon two primary contentions, namely (i) the criteria on which the refusal was based were unlawful and (ii) in the Claimant’s particular case, the refusal was in frustration of a legitimate expectation.

The GMC is constituted by Order of the Privy Council, but functions under the Medical Act 1983 (to which all statutory references in this judgment refer, unless otherwise apparent). Its main objective in exercising its functions is “to protect, promote and maintain the health and safety of the public” (section 1(1A)).

In furtherance of that purpose, it is charged with registering and regulating doctors within the United Kingdom. Section 2 requires the Registrar of the GMC to keep a register of medical practitioners; and all medical practitioners are required to be registered with full or provisional registration. In performing that function, the Registrar may act through others, such as Assistant Registrars. 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 (section 21C(1) and (3)).

The scheme provides for the registration of doctors who have overseas qualifications, the current scheme being introduced from 19 July 2006 by the Medical Act 1983 (Amendment) and Miscellaneous Amendments Order 2006 (SI 2006 No 1914) which inserted sections 21B and 21C into the 1983 Act.

Section 21B 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 General Council” is defined as the GMC (section 1(1)).

Section 22(4) defined “acceptable overseas qualification” thus:

“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 skill 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 repealed that definition and replaced it by inserting a new section 21B(2), as follows:

“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.”

Where a qualification is not accepted by the Registrar, there is a right of appeal to the Registration Appeals Panel, a statutory committee of the GMC (section 1(3)) which has the same powers and duties as the Registrar.

Section 21C concerns the criteria for provisional registration of doctors with an overseas qualification. Those criteria substantially reflect those in section 21B, except they are tailored to the registration of doctors for the limited purpose of enabling them to satisfy the Registrar that they have sufficient knowledge, skill and experience necessary for full registration. 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 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.”

In respect of what might be an “acceptable overseas qualification” for the purposes of the Act, there are no universally accepted criteria for accreditation of medical schools or PMQs. Prior to 1995, the GMC maintained its own list and had a Registration Committee, the functions of which included advising the GMC on the recognition or acceptance of international medical qualifications for registration purposes. In 1995, the number of registered qualifications was approximately 900.

However, in October 1995, the Committee conducted a feasibility study as to whether it could continue to maintain the list and concluded that it could not, because of both the practical difficulties of doing so and the potential problems of unequal treatment between doctors. The evidence of Ms Frances Conway, the Head of Registration and Intelligence at the GMC, in statements dated 4 May and 25 June 2012, was that it is simply impractical now for the GMC to assess or verify PMQs available around the world. A list based upon the Committee’s own assessment was therefore abandoned in favour of the list of qualifications published in the World Health Organisation (“WHO”) Directory (approximately 2,000 qualifications). Those were accepted by the GMC as “acceptable overseas qualifications” for the purposes of the Act, without any further assessment or consideration. They were supplemented by about 70 qualifications, not in the WHO Directory, mainly from countries not recognised by the United Nations.

However, prompted by a BBC report, in 2005 the GMC through its Registration Committee reviewed this mechanism for determining “acceptable overseas qualifications”. The Committee reported on 6 June 2006, and the report identified a number of matters of concern.

In particular, the Committee found that a number of medical schools, some UK-based, claimed affiliations to universities listed in the WHO Directory (which enabled them to take advantage of those universities’ inclusion in the Directory), when they in fact had no links at all; and some qualifications were awarded by universities which had no physical address identified in the WHO directory. Furthermore, they were concerned that some qualifications granted by WHO Directory medical schools were awarded following a course of study (i) undertaken wholly or substantially in another jurisdiction (which could result in, for example, students and others believing that those institutions were offering qualifications from a different jurisdiction than they in fact were), (ii) with substantially less than the 5,500 hours or 6 years usual for UK PMQs, or (iii) that was by way of a correspondence course, undertaken without face-to-face teaching. The report concluded that:

“Although the risk posed by these issues is very small, the impact on our reputation and credibility could be significant. We should therefore consider how these problems might be solved”.

In terms of ways forward, the Committee considered that there was no immediately available suitable alternative to the WHO Directory; but agreed to revise the definition of “acceptable overseas qualification” to make inclusion in that directory a necessary but not a sufficient criterion. The Committee’s conclusion is captured in paragraphs 15 and 16 of the minutes of their 13 June 2006 meeting, as follows:

“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 at 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.”

Two problems arose after those criteria came into effect in 2006.

First, the criteria required the relevant course not to be “wholly or substantially” undertaken outside the country of the award or by correspondence. There was a lack of certainty as to what “wholly or substantially” meant in that context.

Second, the Registrar and the Registration Appeals Panel (which had the same powers and duties as the Registrar, and of course applied the same definition of “acceptable overseas qualification”) disagreed as to the proper interpretation of the criteria. The Registrar took the view that each of the criteria set out in paragraph 15(a)-(e) of the 13 June 2006 minutes was definitional, i.e. it was a precondition of acceptance of a qualification (and hence a precondition of registration under either section 21B or 21C) that each was satisfied. However, in three appeals to which I was referred, the Registration Appeals Panel considered that only the criterion in paragraph 15(a) (a qualification from an institution included on the WHO Directory or otherwise accepted by the GMC) was mandatory. In respect of the other criteria (which, in the event of a “lack of compliance”, paragraph 16 indicated were “subject to further review”), the Panel took the view that the Registrar (and hence the Panel on appeal) had “the discretion to look at the merits of the application on a case by case basis”; and, consequently, the Registrar (or, in its turn, the Panel on appeal) could register a doctor even if he did not satisfy one or more of the criteria set out in paragraph 15(b)-(e). Each of the three appeals was allowed. In one of those, in which the Panel’s decision was given on 24 June 2009, the criterion in paragraph 15(d) was not satisfied, because the study for the qualification had taken place entirely outside the country awarding it (again, St Kitts and Nevis).

In 2010, the definition of “acceptable overseas qualification” was reviewed, to address the issues that had arisen between the Registrar and the Registration Appeals Panel, and generally to ensure consistency in how the criteria were applied. At a meeting on 13 July 2010, the GMC adopted a new definition of “acceptable overseas qualification” for the purposes of section 21B(2).

The new definition involved a number of criteria, many reflecting those which had been in use since 2006. However, there were some significant changes. The reference directory was changed from the WHO Directory to the Avicenna Directory (which, as I understand it, is another directory of medical schools and awards maintained by the WHO). Furthermore, the references to “wholly or substantially” outside the country awarding the qualification or by way of correspondence were replaced by actual percentage figures. Thus, the new criteria (e) and (f) (often referred to later as criteria 5 and 6) provided 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.

(f)

It must not have involved following a programme of study where more than 25% of that study (compared to the standard duration of the qualification calculated using total hours of study) has been undertaken by distance learning. Distance learning will include learning by correspondence, using the internet or online learning methods, self-directed learning and any training or learning which is undertaken other than on a face to face basis.”

Criterion (g) provided:

“(g)

Where the qualification held by an applicant fails to satisfy any one or more of the above criteria that application must be refused (on the grounds that the applicant does not hold an acceptable overseas qualification).”

Those criteria have been applied since 2010, and appear to have been interpreted consistently by the Registrar and the Registration Appeals Panel such that, where a particular qualification does not satisfy criterion (e) or (f), then, pursuant to criterion (g), registration has been automatically refused on the ground that the applicant does not hold an acceptable overseas qualification.

For example, I was referred to a decision of the Registration Appeal Panel on 7 February 2012, in which the applicant doctor had applied for registration on the basis of a PMQ issued by the University of Health Sciences, Antigua. However, no period of study had been undertaken within Antigua, or even the West Indies. The Panel expressed sympathy with the doctor, before continuing:

“The fact remains that unlike many GMC decisions the Assistant Registrar does not have any discretion in a case of which this is a type. General [Medical] Council directs that where an applicant does not hold an acceptable overseas qualification the application must [emphasis in the original] be refused. It is put on behalf of the Applicant that as an appeal body we are not bound by that direction and are free to exercise a discretion on the facts. We disagree and absent any enabling power we must deal with an appeal based upon the same laws and regulations which apply (including those made under delegated powers) to the first instance decision maker [i.e. the Registrar or Assistant Registrar].

…

The Panel has borne in mind it primary duty under section 1(1)(A) of the Medical Act to protect, promote and maintain the health and safety of the public.

Having considered all the information before it, including the provisions of the Medical Act, the Panel is satisfied the Appellant does not have an acceptable overseas qualification.”

The appeal was consequently dismissed. That approach of the Panel can be compared with its approach under the previous criteria, in the case in which it gave its decision on 24 June 2009 (referred to in paragraph 17 above).

The Claimant is a qualified pharmacist. Having obtained his BSc in Pharmacy from the City of Leicester Polytechnic, he worked as a pharmacist manager at a High Street chemists for three years, before starting his own independent pharmacist business, of which he is still a director. Since 1983, he has managed and provided pharmacy services at three pharmacies in Wallington and Carshalton, Surrey. Since 1980, his wife has practised as a podiatrist for the National Health Service. His son is a qualified doctor, and his daughter is currently studying dentistry at Queen Mary College, London.

In 2004, the Claimant decided that he wished to qualify as a doctor, with a view to practising medicine. He wanted to complete his pre-clinical studies on a part-time basis, at the same time as conducting his business as a pharmacist; although he understood that he would have to devote himself full time to his clinical rotations. Consequently, his plan was to study on a suitable distance-learning course, but carry out the clinical rotations element in the UK. He identified an MBBS course, offered by the IUHS, an institution listed in the WHO (and, now, the Avicenna) Directory and one which had some affiliation with the UK-based London College of Medicine.

The course involved 160 weeks of study, divided into 10 equal blocks. At the end of each block, an exam was to be taken. It had to be passed before the student proceeded to the next block. At the end of that whole period of study, there was both an IUHS internal exit examination, and students were required to pass the United States Medical Licensing Examination (“USMLE”) Step 1, before they proceeded to the clinical stage. The clinical training comprised 80 weeks, with core rotations undertaken for 48 weeks and elective rotations for 32 weeks. At the end of that clinical training, the IUHS required students to pass the USMLE Step 2 (Clinical Knowledge), before awarding the degree.

This course represented a significant commitment by the Claimant, in terms of time and money. In terms of money alone, the Claimant estimates his total expenditure on preclinical studies, clinical rotations, books etc, travel and accommodation on his single trip to IUHS in St Kitts, and examination fees at over US$40,000.

The Claimant’s decision to become a doctor and begin his preclinical training was of course before the 2006 changes in the GMC criteria for acceptable overseas qualifications, at a time when the focus for acceptable overseas qualifications was on inclusion in the WHO Directory and there were no criteria restricting the place or form of study etc.

He therefore emailed the GMC on 5 November 2004, in the following terms:

“I am thinking of applying to LONDON COLLEGE OF MEDICINE, who is an affiliate of the IUHS University in St Kitts in the West Indies. I gather that IUHS is recognised by WHO and therefore by extension LCM would also be recognised. However I have several concerns –

a)

Does GMC recognise the distance learning pre-clinical education offered by LCM?

b)

Does GMC approve of LCM’s status and its teaching methods?

c)

I understand that LCM is currently being “investigated” to ascertain its standards and facilities. Can you tell me when this is likely to be concluded?

If on the other hand I apply directly to IUHS (which is an approved medical institution also recognised in the US and by WHO) in St Kitts, but complete the pre-clinical by distance learning and then complete the clinical in the UK, would that be acceptable to the GMC.”

The GMC responded, by email, the same day:

“Thank you for your email dated 5 Nov 2004.

The London College of Medicine is under review and within the next few months we should have a decision posted on the GMC website. We will not currently accept the Primary Medical Qualifications as eligibility for taking the PLAB test.

If your qualification is given by the International School of Health Studies this accepted by the GMC.”

The final paragraph reflects the then-current focus.

The Claimant followed this up, by a further email on 8 November:

“Thank you for your prompt reply to my e-mail of 5th November regarding the qualification given by IUHS medical school in St Kitts, which you confirm the GMC recognises and accepts.

However my question was that if I apply to IUHS and complete the PRE-CLINICAL by distance learning and then complete the CLINICAL in the UK – would that be acceptable to the GMC?”

The GMC replied the following day:

“Thank you for your reply.

If you have completed the qualification but not an internship, you can still take the PLAB test but the test is concerned with mainly Senior House Officer levels.

I hope this answers your query, if not please reply and explain further.”

The Claimant did not think that that did answer his question. He responded the same day:

“Further to your e-mail of 9th November, my question is that does the GMC recognise and accept the distance-learning (on-line) pre-clinical element of the medical course offered by the IUHS in St Kitts? - PLEASE REPLY YES OR NO.

As you are aware that the clinical part of the course is in a UK hospital under full supervision and further IUHS is also recognised by the GMC and WHO.”

The GMC again responded promptly, the following day:

“Thank you for your email dated 9 November.

We have recently had a further clarification regarding the medical degrees awarded by the London Medical College/ London School of Medicine (awarded by the IUHS). We are now accepting these degrees for the purposes of limited registration. The medical degree awarded by IUHS is also accepted for the purpose of limited registration.

You need to be aware that as the GMC does not currently recognise this school, a degree from the university will not automatically lead to registration, students will still have to sit PLAB or fulfil alternative criteria to be eligible for limited registration. The school is not subject to any Quality Assurance or inspection by the GMC and potential students will have to satisfy themselves both that the schools will be awarding a degree from WHO-listed universities when they graduate and that they are in [illegible] stable institutions.

If you have any further queries please contact us we will do our best to help.”

Limited registration was a different form of registration, which is no longer available; but the precise form of registration is of no significance to this claim.

The gist of that email from the GMC was that the Claimant could not rely on the affiliation of the IUHS with the UK-based London College of Medicine. However, the affiliation point was now not at the forefront of the Claimant’s mind. He sent a further email on 14 November, headed “Further Clarification (Medical Degree from IUHS)”:

“Further to your email of 10 November, I am confused on the GMCs position on the degree provided by IUHS in St Kitts. I therefore have TWO of questions –

In your reply to me you state that the GMC are now accepting the medical degree awarded from IUHS for the purpose of limited registration, meaning the student having to sit the PLAB exam in order to practice in the [illegible] supervision.

You then go on to state in the same email that GMC does not CURRENTLY RECOGNISE THIS SCHOOL (IUHS) – even though IUHS is listed on WHO’s accredited list of medical schools.

What is the current position of the GMC?

Secondly, if the GMC accepts the degree from IUHS, (for the purpose of limited registration) therefore by implication it also accepts and recognises the distance-learning, pre-clinical elements in the medical course offered by IUHS. Is my understanding of the situation correct?”

The final response from the GMC was on 16 November 2004:

“Thank you for your reply.

The General Medical Council accepts the primary medical degree awarded from International University of Health, St Kitts for the purposes of registration, this entitles the student to sit the PLAB exam in order to by [sic] eligible for registration in the UK.”

I pause there to mark that it is that representation by the GMC, of course in its full context, that the Claimant relies upon to found his legitimate expectation.

The Claimant proceeded to enrol on the MBBS course at IUHS, which he undertook from 2005 to 2011. His pre-clinical studies were by way of distance-learning, although he spent two months studying in St Kitts in late 2006. Having successfully passed the relevant examinations, he then did his supervised clinical rotations at a number of hospitals in London, Surrey and Sussex. He passed all, achieving honours in thirteen of the nineteen that he took. He completed his MBBS in July 2011, obtaining a distinction overall.

To progress to the next stage, a foundation programme doctor’s post (which the Claimant wished to take up in a UK hospital in August 2012), because he was relying on an overseas PMQ, he needed to take and pass the PLAB examination.

He also needed to obtain provisional registration with the GMC. He duly contacted them. The response to his enquiry was sent on 14 November 2011, in the form of an email from Ms Jennifer Cooper, Investigation and Intelligence Officer at the Registration Directorate of the GMC. Having set out the current criteria, Ms Cooper continued:

“Having considered the information provided to us, it appears that your [PMQ] is not currently acceptable to the GMC. This is because:

Point 5 of the criteria requires that at least 50% of the standard course of study is undertaken in the country that awards the qualification. The standard course of study at IUHS is four academic years/160 weeks. As you completed only 1 module (Block 9 from 21 October 2006 to 14 December 2006) which equates to just under 8 weeks of study in Saint Kitts and Nevis, your primary qualification does not meet the criteria and therefore cannot be considered acceptable for the purpose of sitting the PLAB test or applying for GMC registration.”

That decision to refuse to accept the Claimant’s PMQ as an “acceptable overseas qualification” is the decision he now challenges. It was reinforced by a further email dated 13 December 2011, sent to him by Ms Conway. She said:

“Criterion 5 says that a 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.’

I understand that your primary qualification was awarded by the [IUHS] in St Kitts. The Dean of Academic Affairs has confirmed to us that the normal duration of the programme you undertook is 160 weeks, and that all of your studies were undertaken outside St Kitts, apart from a period of a little under eight weeks between 21 October 2006 and 14 December 2006. I am afraid it is therefore clear that your qualification is unacceptable for the purposes of registration in the UK. I realise that this is very disappointing news.

The Medical Act 1983 does not provide a statutory right of appeal in these circumstances. I hope I can explain why. By law, it is our General Council that decides which overseas qualifications are acceptable for the purposes of registration in the UK; and it has discharged that function by agreeing criteria that all such qualifications must meet.

The current criteria were agreed by the Council in July last year, and published on our website in September 2010. However, the criteria that they replaced (which were not fundamentally different) had been in place since October 2006.

This is not, therefore, a case where we have made a ‘decision’ on your eligibility for registration. All we have done is respond to your enquiries and, in doing so, draw your attention to the fact that your qualification does not meet the General Council’s published requirements. This is something that any internal medical graduate may establish for themselves by referring to the criteria on our website.

I am sorry that I cannot be more helpful. I hope I have at least clarified matters.”

The Claimant challenges the decision of 14 November 2011 to refuse to accept his PMQ as an “acceptable overseas qualification”, on the following grounds, which I will deal with in turn.

Mr Hyam for the Claimant submitted that sections 21B and 21C confer on the GMC a broad discretion in relation to an “acceptable overseas qualification”, on two bases.

First, he submitted that a general discretion to waive any requirement of section 23B(1) or 23C(2) (including the requirement for an “acceptable overseas qualification”) derives from the express words of those sections, and particularly the use of the phrase “if the General Council think fit so to direct”, thus:

“21B(1). Where a person satisfies the Registrar [as to the criteria set out in paragraphs (a)-(e),] that person shall, if the General Council think fit so to direct, be registered under this section as a fully registered medical practitioner.

….

21C(2). 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 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.” (emphasis added).

Mr Hyam submitted that, for the purposes of provisional registration, even where one or more of the statutory criteria in sections 23B(1) and 23C(2) are not met, the emphasised words in section 23C(2) oblige the GMC to consider whether the individual is in fact competent to take the PLAB examination and (if successful) to supervised foundation work in a hospital. For the purposes of full registration, the phrase in section 21B(1) has the same substantive effect.

I cannot accept that interpretation. On their plain, clear and unambiguous wording, under both sections, an applicant is required to satisfy the Registrar that the relevant criteria in section 23B(1) have been met: they are not simply matters that the Registrar has to take into account when considering (for example) whether the applicant is competent to progress. Neither section 23B(1) nor section 23C(2) gives the GMC a discretion to allow registration where a person does not satisfy the Registrar in respect of the specified criteria: rather, they provide that, even where a person satisfies the Registrar with regard to all of the specified criteria to the Registrar’s satisfaction, the GMC retains a discretion to direct that that person shall not be registered. That is a true discretion, required to be exercised on the basis of public law principles. However, for the discretion inherent in the emphasised words to arise at all, the Registrar must first be satisfied as to each of the statutory criteria set out in section s23B(1) for full registration, or section 21C(2) for provisional registration – including, in each case, that the applicant has an “acceptable overseas qualification”. The words brook no other construction.

However, in the alternative, Mr Hyam submitted that there is a discretion necessarily implicitly embedded in section 21B(1)(a) – and hence, by reference, in section 21C(2)(a) for provisional registration. His argument ran thus. In the exercise of any of its functions, the GMC must have regard to its main objective, namely “to protect, promote and maintain the health and safety of the public” (section 1(1A)). The definition of “acceptable overseas qualification” in section 21B(2) (which is in terms of a “qualification for the time being accepted by the [GMC] as qualifying a person to practise medicine in the United Kingdom”) presupposes that the GMC has a power to define and apply relevant criteria by which such qualifications can be identified. Mr Hyam submitted that is not open to the GMC to use that power to frame criteria in absolute terms (i.e. terms which do not allow any exception) because such terms would fetter its discretion. In particular, such terms would be contrary to the GMC’s main statutory objective, because an individual applicant may on consideration be actually (and, possibly, plainly) competent to progress to the next stage of his or her path to being a fully registered doctor. In a submission reflecting the wider contention in relation to the statutory criteria in section 23B(1) referred to above, Mr Hyam submitted that, even where one or more of the criteria which the GMC has identified as defining “acceptable overseas qualification” are not met, the statute obliges the GMC to consider whether the individual is in fact competent to progress to take the PLAB examination and (if successful) to supervised foundation work in a hospital.

In support of that legal proposition, Mr Hyam relied upon R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 at [143] per Lord Clyde, R v Secretary of State for the Home Department ex parte Venables [1998] AC 407 at page 433A per Lord Woolf and at pages 496G-497C per Lord Browne-Wilkinson, and the particularly well-cited passage from Lord Reid’s opinion in British Oxygen Co Ltd v Minister of Technology [1971] AC 610 at page 625. The last-mentioned is sufficient to encapsulate the point:

“The general rule is that anyone who has to exercise a statutory discretion must not ‘shut his ears to an application’…. I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say….”

The rationale for such a proposition is found succinctly put in R (Nicholds and others) v The Security Industry Authority [2006] EWHC 1792 (Admin) at [61], where Kenneth Parker QC sitting as a Deputy High Court Judge (as he then was) said:

“In most instances where a discretionary power is conferred it would be wrong for the decision maker to frame a rule in absolute terms because to do so would defeat the statutory purpose.”

In the Claimant’s case, it was submitted that, from the Claimant’s pre-clinical studies and clinical rotations (on the basis of which he has passed his MBBS with distinction), the GMC can be assured that the Claimant does have sufficient knowledge and skill requisite to allow him to practise medicine in an appropriate programme and under supervision. If considered on its individual merits, his education is equivalent, if not superior, to that of medical students with a degree from UK universities. In any event, before he is allowed to practise, he must pass the PLAB examination, which would be another marker of his competence. Therefore, the GMC were not only wrong in failing to consider his individual merits: had they done so, they would have concluded that he should be allowed to proceed to sit his PLAB and, if successful, to undertake a foundation year 1 post.

However, I do not agree that section 23B prohibits the GMC from defining “acceptable overseas qualification” by reference to criteria that do not allow exception, for the following reasons.

In my judgment, Mr Hyam’s submissions wrongly portray the nature of the “power” granted to the GMC under section 23B(1)(a).

It is part of the statutory scheme that the overriding aim of the statute in section 1(1A) (to protect, promote and maintain the health and safety of the public) is given effect by applicants being required to satisfy a number of specific requirements before being registered to practise as a doctor. The requirement for the applicant to hold “an acceptable overseas qualification” in section 21B(1)(a) (imported into the scheme for provisional registration by section 21C(2)(a)), whilst no doubt being some evidence of competence, is a separate requirement from that in section 21C(2)(b) that “he possesses the knowledge and skill requisite for embarking upon an acceptable programme for provisionally registered doctors”. Mr Hyam’s construction elides them, with the qualification being no more than evidence of the competence. Whilst there is no doubt in fact a relation between them, there are two quite distinct statutory requirements here: one is focused on the qualification, and the other on the competence, of the doctor.

Section 21B(1)(a) entrusts to the GMC the identification of overseas qualifications that it is appropriate to accept for the purposes of registration as a doctor in the UK. Mr Hyam submitted that the statutory scheme gave the GMC a very broad discretion in defining “acceptable overseas qualifications”, and hence in identifying those foreign PMQs that it is appropriate to accept for registration purposes; and, at least in one sense, that is right. By these provisions, Parliament clearly intends the GMC, as an expert body, to exercise its own judgment as to what qualifications are adequate for these purposes. The exercise of that judgement is of course subject to the bounds of Wednesbury reasonableness: but, given the nature of the statutory scheme, the wording used (“qualification… accepted by the [GMC] as qualifying a person to practise as a medical practitioner in the United Kingdom”) and the particular expertise of the GMC, I have no doubt that those boundaries are wide.

However, that does not mean that the GMC is prohibited from insisting that the qualification relied upon – as opposed to the general competence of the doctor – should be subject to minimum requirements.

Whilst of course there are differences from this case, R v The Specialist Training Authority of the Medical Royal Colleges (Case No CO/1442/1998: Unreported, 5 November 1998) is instructive. EC Council Directive 93/16/EEC required mutual recognition of specialist medical qualifications in each Member State; and, in furtherance of that obligation, the European Specialist Medical Qualifications Order 1995 (SI 1995 No 3208) required competent authorities to hold a register of medical specialists. There were two competent authorities: the Specialist Training Authority of the Medical Royal Colleges (“the STA”, the respondent in the claim), and the GMC. Pending the introduction and issue of new Certificates of Completion of Specialist Training (“CCSTs”), article 12(2)(c)(ii) of the 1995 Order provided that a doctor was entitled to registration if he satisfied the STA that he had qualifications awarded in the UK in such specialty which, together with any experience which he had in that specialty, gave him expertise equivalent to the level he might reasonably be expected to have attained if he had a CCST in that specialty. In fact, the STA only registered doctors if they had passed specified examinations. That admitted of no exceptions. It was argued that that unlawfully fettered the discretion of the STA.

Dyson J (as he then was) refused that ground of challenge. He held that article 12(2)(c) did not give the STA a discretionary power in the sense in which that expression is used in public law. The provisions did not require the STA to determine whether persons who demonstrated equivalence should be included on the register (which would have been the exercise of a discretion in the public law sense), but rather to be satisfied that the applicant had acquired equivalence. In exercising that power, discretion in the public law sense was not being exercised. He said, in the penultimate paragraph of his judgment:

“The true position is that Parliament has entrusted to the STA the assessment of equivalence. The STA has decided to publish the criteria by which it will carry out that assessment. It is not criticised for doing so. Indeed, it would probably have been criticised if it had not done so, because applicants are entitled to know how the STA intends to carry out its assessment. In my judgment, the STA was entitled to specify certain minimum criteria which it would insist had to be satisfied by every applicant as a condition of satisfying the ultimate test of equivalence. Provided that these criteria were authorised by the 1995 Order as amended, and were not unreasonable in the Wednesbury sense, in my view they cannot be challenged. Since the criteria of which complaint is made are qualifications, they come within Article 12(2)(c)(ii) and are authorised by the 1995 Order as amended. There is no Wednesbury challenge. Accordingly, this third ground of challenge fails.”

Of course, there are differences between that case and this. However, the similarities are striking. Particularly, the STA was required to be satisfied that the applicant had acquired equivalence. In the case before me, the Registrar has to be satisfied that the Claimant held an “acceptable overseas qualification”, which was defined simply in terms of a qualification that the GMC accepted as satisfying that the statutory precondition and hence qualifying the applicant to practise medicine in the UK. If anything, this case is the stronger; because section 23B(1)(a) expressly requires the GMC to identify overseas qualifications that will be acceptable to it.

As Kenneth Parker QC said in Nicholds, in most instances where a discretionary power is conferred it would be wrong for the decision maker to frame a rule in absolute terms, because to do so would defeat the statutory purpose. However, the intention of Parliament here is to require the GMC to identify PMQs, acceptable to the GMC, that are to be a condition of an applicant progressing to be registered and to take the PLAB test. That intention is not defeated, but satisfied, by the identification of criteria that any PMQ must satisfy.

Mr Hyam sought to distinguish Nicholds from this case, because the relevant statutory provision in Nicholds (section 7 of the Private Security Industry Act 2001) imposed upon the relevant authority (the Security Industry Authority) a duty to publish a document setting out the criteria upon which it proposed to grant or refuse licences; whereas in this case, there is no such express duty. However, as Mr Hyam accepted, there is at least a power in the GMC to exercise its obligation by reference to such criteria; and, if they do so, then it seems to me that there is at least arguable that it has a duty to publish those criteria (in support of that proposition, see the paragraph of Dyson J’s judgment in STA, quoted in paragraph 55 above). But, in any event, in analytical terms, there is no material distinction between a duty and a power, the point being that it is the Parliamentary intention at least to enable (if not to require) such criteria to be set.

Subject to the criteria imposed not being unreasonable in the Wednesbury sense, I am quite satisfied that the duty imposed on the GMC by section 23B(1)(a) to identify PMQs that are acceptable to it to enable an applicant to progress enable the GMC to specify minimum criteria which it would insist had to be satisfied in respect of a particular PMQ before it would be an “acceptable overseas qualification”. In specifying such criteria, the GMC does not fetter its discretion in a public law sense.

It is to Wednesbury unreasonableness that I now turn.

Mr Hyam submitted that there is 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, that requirement therefore being irrational or arbitrary in a Wednesbury sense. He submitted that the aims of the requirement can be identified in the GMC’s own documents, namely:

However, the rationality of this requirement must be seen in context, which includes (i) the absence of any universally recognised standards for PMQs, and (ii) the will of Parliament, and intention of the regulatory scheme, to require the GMC, as a specialist body, to identify criteria by which a PMQ will be acceptable. In those circumstances, this court must be cautious before finding that a requirement worked out over several years is irrational.

In the event, I am not persuaded that it is anything approaching irrational.

Ms Conway states that:

“[T]he aim [of the requirement] is to help ensure that, for those seeking to practise in the UK, the opportunities for direct contact with teaching staff, access to relevant support and facilities and active encouragement in their medical education, will be optimised. It is believed to be one of the most effective guards that the [GMC] currently has within its powers to endeavour to ensure that the standard of medical education provided by overseas awarding bodies is satisfactory.” (4 May 2012 Statement, paragraph 42).

That reflects the broader concerns of the GMC Registration Committee in its report of 6 June 2006 and its meeting of 13 June 2006 (see paragraphs 12-14 above), and the Committee’s wish to see a requirement for greater association between the applicant, the educational establishment and the degree; concerns that were carried through to the 2010 deliberations of the Committee. The purpose of the requirement is therefore broader than merely the three specific aims identified by Mr Hyam, although the requirement does limit the scope for such abuses. It is impracticable for the GMC to assess or verify the many PMQs issued round the world (see paragraph 11 above). It is not irrational for the GMC to insist on a requirement that goes to ensure to a significant degree that the awarding institution has a proper degree of control and supervision over the period of study looked at as a whole.

The requirement cannot, as Ms Conway stresses, be looked at alone. It is part of a raft of requirements, all of which an applicant must satisfy, including criterion 6 (the PMQ must not have involved following a programme of study where more than 25% of that study has been undertaken by distance learning: see paragraph 14 above); but also, in addition to the specific requirements of the PMQ, the need eventually to pass the PLAB test, for example. These requirements cannot be considered in isolation. They must been seen as a whole, collectively ensuring, in the view of the GMC to which the judgment has been entrusted, that the health and safety of the public is properly protected.

Nor do I consider the criteria rendered irrational by their lack of transitional provisions, which might have been adopted to cater for those who may have commenced studies abroad towards becoming a doctor in the UK. Such provisions might be practically difficult, because some students may take longer than others to complete their studies. The Claimant, as I understand it, took 7 years to complete a 4 year course. But, in any event, the GMC was entitled to change the criteria for educational requirements with immediate effect of it considered that it was appropriate to bring in the necessary changes with such immediacy. The changes were made to cure perceived deficiencies, and the GMC was not bound to allow those deficiencies to continue for longer than they needed to.

In these circumstances, in my view, the requirement for 50% of the study to take place in the country awarding the PMQ falls far short of being irrational.

Mr Hyam submitted that, even if not irrational in a Wednesbury sense, the imposition of the “50% rule” for all overseas qualifications is disproportionate to the perceived need addressed, namely those aims he identified as set out in paragraph 61 above.

I am unpersuaded by this ground for the following reasons.

First, over and above the scope of Wednesbury unreasonableness, proportionality is not a common law principle (R v Home Secretary ex parte Brind [1991] 1 AC 696). It is a concept derived from Europe, and proportionality comes into play only where triggered by, for example, European law rights (including human rights) being in issue.

Mr Hyam submitted that, by not accepting his degree for registration purposes, the GMC was actually or potentially in breach of article 2 of Protocol 1 of European Convention of Human Rights, which guarantees the right to education; such that European rights were engaged, and the principle of proportionality applies.

However, that article has significant limitations in its scope. In R (Sivills) v General Social Care Council [2007] EWHC 2576 (Admin), Jackson J (as he then was) was faced with a submission on behalf of the claimant that article 2 of protocol 1 was engaged in relation to the issue of registration of a social worker who had completed a social worker course which was not on the list of appropriate courses prescribed by the General Social Care Council under schedule 1 to the General Social Care Council (Registration) Rules 2005. However, he held it was not. The guaranteed right to education is limited to the right for individuals to avail themselves of the means of instruction available at a given time (Belgian Linguistics (No 2) (1968) 1 EHRR 252 at paragraph 3, to which Jackson J referred); and hence the modalities of rights protected by the provision included:

“participating in the education provided by the State, obtaining the degree, diploma or certificate which is appropriate to the candidate’s achievement on her chosen course and so forth”;

but not, he found, the possibility of future registration as a social worker. That is not one of the modalities of right guaranteed by article 2 (Sivills, paragraph 63); nor are the arrangements for registering social workers sufficiently closely related to the right guaranteed by article 2, being one stage removed from Mrs Sivill’s education (paragraph 64); nor did Mrs Sivill’s inability to register as a social worker in any material way inhibit her enjoyment of the right guaranteed by article 2 (paragraph 65) I respectfully agree with that reasoning, which applies equally to this case.

Mr Hyam relied upon Belgian Linguistics (No 2); but that concerned the non-homologation (i.e. non-recognition for professional purposes) of educational certificates in Belgium on purely linguistic grounds. That case was relied upon by Mrs Sivills in a case similar to this, and fully considered by Jackson J in Sivills (see paragraphs 46 onwards). Suffice it here to say that the facts of, and issues in Belgian Linguistics (No 2), are very different from this case, which concerns the non-acceptability by a professional body of an overseas qualification on rational grounds, linked to their statutory responsibilities. The fact that the Claimant in the case before me made specific enquiries of the GMC may possibly have led to the raising of a legitimate expectation (to which I shall turn shortly); but it cannot, as Mr Hyam suggested, arguably have affected whether article 2 of protocol was engaged or not. With respect, it was not.

But, in any event, even if the principle applied, it would be strongly arguable that the criteria adopted were not disproportionate. I fully appreciate that irrationality and proportionality cannot be equated: they are conceptually different, and fundamentally so. Proportionality requires a more intense standard of review, and one that goes further than traditional Wednesbury grounds in that it requires a review of the relative weight given to the various rights, interests and considerations involved. In particular, it requires consideration of the actual and potential consequences to individuals compared with the aim sought to be achieved. However, in this case, as I have found, the criteria which the Claimant challenges had a perfectly rational basis, and the aims were not limited to merely the three specific aims identified by Mr Hyam but were wider in scope (see paragraphs 63-64 above). The requirement was intended generally to protect the public, in pursuit of the statutory obligation on the GMC so to do. Whilst I appreciate that this may be regarded as harsh by the Claimant, I am not persuaded that the adopted criteria, even with their lack of discretion to depart and lack of transitional arrangements for those who had commenced the process, would properly be regarded as disproportionate.

For those reasons, this ground fails.

Where an authority has made a clear and unequivocal representation to an individual – by promise or practice – that individual can require the authority to act in accordance with the expectation raised, if it was reasonable for him to rely upon the representation and he did so, and there is no overriding public interest in allowing the authority to resile (R v Inland Revenue Commissioners ex parte Unilever plc [1996] STC 681 at page 693c-d). For the authority to go back upon the representation in those circumstances is an abuse of power, which the courts will step in to prevent.

Mr Hyam submitted that the GMC gave repeated assurances to the Claimant that a medical degree from IUHS would be acceptable for the purposes of GMC registration. The Claimant specifically relies upon the final email from the GMC on 16 November 2004:

“The General Medical Council accepts the primary medical degree awarded from International University of Health, St Kitts for the purposes of registration, this entitles the student to sit the PLAB exam in order to by [sic] eligible for registration in the UK.”

Mr Hyam submitted that that was a clear and unequivocal representation that, if the Claimant underwent his preclinical training by distance learning at IUHS and his clinical rotations in the UK, then he would be entitled to sit the PLAB examination in order to be eligible for registration. That was a promise as to what would happen in the future, a promise that would remain good even if the criteria for an acceptable overseas qualification were to change before he applied for registration, or if the qualification were removed from the relevant directory, or if the course changed in a material way. It was a promise that, if he were to gain that qualification, then he could progress to take the PLAB and to registration, and, for the Claimant, there would be no change in the criteria for doing so.

He further submitted that, looking at the representation objectively, it was reasonable for the Claimant to understand it in that way, whatever those at the GMC who made the representation may subjectively have intended to convey; and it was reasonable for him to rely upon it, given that it was made on an enquiry concerning the acceptability of an overseas qualification (an enquiry made as he was “thinking of applying” to medical school (his email of 5 November 2004)), and so the GMC could readily infer that the Claimant was making enquiries as he wanted to practise as a doctor in the UK – and the GMC were aware that any medical degree would last several years. Further, the Claimant did rely upon it, to his detriment, by expending time and money on the degree.

In support, he relied upon the minutes of the GMC meeting on 6 June 2006, when changes to the criteria for acceptable overseas qualifications were being discussed, when it was minuted:

“[A]ny significant reduction in the list of acceptable PMQs is likely to invite a challenge from those who would claim to now have a legitimate expectation that their PMQ (either held or currently being studied for) would be acceptable for the purposes of GMC registration. Over the years the GMC has routinely made statements about the acceptability of PMQs. These statements have never previously been qualified (by for example stating the policy was subject to change or variation at any time…”.

Having committed time, money and considerable effort in obtaining his degree from IUHS, I can quite understand the Claimant’s frustration that he cannot now rely upon that degree in his progress towards becoming a doctor in the UK. However, I cannot accept that it is a representation that he can rely upon in law as raising a legitimate expectation, as he contends.

I accept that legitimate expectation focuses upon the intentions of the authority as objectively represented to the relevant individual, and not on its subjective intentions. I have no doubt that the GMC never intended to give the Claimant a guarantee that the criteria for PMQs would never change so far as he was concerned. Had they addressed the question in respect of the future, that is the response, I am sure, that they would have made. The issue here is, however, the objective intention.

As I have indicated, the relevant representation has to be clear and unequivocal, such that for the relevant public authority (in this case, the GMC) to resile from it amounts to an abuse of power. In relation to “acceptable overseas qualifications”, the statutory provisions (in section 22(4), and later in section 23B(2)) require the PMQ to be “for the time being accepted by the General Council”, which indicates both that the qualification must be acceptable to the GMC at the time of the application for registration, and that the criteria for acceptability may change from time to time. All of the emails upon which the Claimant relies (including that of 16 November 2004) are notably framed in the present tense, i.e. indicating what was, at that particular time, acceptable to the GMC. There is simply no clear and unequivocal representation in the terms suggested by Mr Hyam: there is no representation as to the future, or that the GMC would not change the criteria for acceptable overseas qualifications in the future. The minutes of 6 June 2006 cannot change that position.

Nor, I should add, do I consider that it was reasonable in the circumstances for the Claimant to consider that the representation was in the terms suggested by Mr Hyam which involve the GMC promising that they will not change the criteria for acceptable overseas qualifications during the period the Claimant was involved in obtaining it, no matter how long that might be (the four year course in fact took the Claimant 7 years).

Disappointing as I know this will be for the Claimant, his legitimate expectation argument consequently does not overcome its first hurdle.

Furthermore and importantly, even if, contrary to my firm finding, the representation claimed had been made, I consider that it would be at least strongly arguable that, to disenable the GMC from resiling from it would contrary to the express provisions of the statute which require the GMC to identify qualifications that it considers acceptable at any particular time. No legitimate expectation can arise if the representation upon which it is based is unlawful, and any legitimate expectation must yield to the express requirements of a statute (R v Department of Education and Employment ex parte Begbie [2000] 1 WLR 115 at page 1125D); and a representation by the GMC as a public body that fetters its ability to change the criteria upon which qualifications are judged is, at least arguably, both unlawful and contrary to the statutory obligations (including its statutory function to keep the criteria for overseas qualifications acceptable for the purposes of registration under review, in the light of its overriding statutory duty under section 1(1) to protect the health of the public). It is in the public interest to permit the GMC to amend its criteria for acceptable overseas qualifications (and, if appropriate, with immediate effect), where its experience has shown that previous criteria have been insufficient to satisfy itself that there are adequate quality assurance mechanisms to ensure that the standards of education and training delivered by an overseas awarding body, looked at as a whole, are sufficient to protect the public’s health.

For those reasons, this ground fails.

Finally, Mr Hyam submitted that it was unlawful for the registration scheme to change, without transitional provisions to protect those who may have begun degrees that would have been compliant with the previous regime but would fall foul of the new. In particular, he submitted that the Claimant was entitled to transitional provisions that retained the discretion in waiving the apparent requirements for qualifications adopted by the Registration Appeals Committee in the period 2006-10 (see paragraph 17 above).

In support of that contention, Mr Hyam relied upon the comments of Sir George Newman sitting as a judge of this court in R (HSMP Forum Ltd) v The Secretary of State for the Home Department [2008] EWHC 664 (Admin) at [61], where he said this:

“I am unable to see a sufficient public interest which outweighs the unfairness, which I am satisfied the changes visit upon those already admitted under the programme. In the circumstances, I am satisfied that the terms of the original scheme should be honoured and that there is no good reason why those already on the scheme shall not enjoy the benefits of it as originally offered to them. Good administration and straightforward dealing with the public require it. Not to restrain the impact of the changes would, in my judgment, give rise to conspicuous unfairness and an abuse of power.

Mr Hyam submitted that those comments apply equally to this case.

This ground was set out in Amended Ground of Claim served shortly before the hearing; but the GMC was able to deal with it and, prior the commencement of the hearing, I granted permission to amend and permission to proceed on this ground.

However, I do not consider that the ground is made good.

First, I do not consider that HSMP Forum assists the Claimant. That was a legitimate expectation case that turned on its own facts, the real issue being whether the relevant scheme, properly interpreted, committed the Secretary of State not to change the conditions and criteria upon which certain migrants were encouraged to enter the original scheme (paragraph 28). Sir George Newman concluded (at paragraph 57):

“I find that the terms of the scheme, properly interpreted in context and read with the guidance and the rules, contain a clear representation, made by [the Secretary of State], that once a migrant had embarked on the scheme he would enjoy the benefits of the scheme according to the terms prevailing at the time he joined.”

In the case before me, for the reasons I have already given (see paragraphs 75-85 above), there was no such representation; any such representation would have been contrary to the statute, and consequently could not be relied upon; and, in any event, even had there been such a representation, I have found it would be in the public interest to permit the GMC to change their criteria for acceptable overseas qualifications with immediate effect.

Further, specifically in relation to the position between 2006 and 2010, the Claimant cannot rely upon an interpretation of the 2006 criteria by the Registration Appeals Panel, when the GMC who promulgated those criteria do not agree that that interpretation was correct; and, crucially, when the Claimant was unaware of that interpretation until well after the event, and did not and could not have relied upon it.

For those reasons, this ground too fails.

I have much sympathy for the Claimant. He has an ambition – clearly deeply held – to become a doctor, and practise in the UK as such. He has made a significant commitment of time, energy and money to that end. As I have indicated, in his endeavours, he has had some academic success. However, he has been left with a medical degree that the GMC will not now recognise. His ambition, if not thwarted, has been severely set back.

However, I can only intervene if I am satisfied that the GMC have acted unlawfully. For the reasons I have given, I do not consider that the criteria adopted by the GMC are unlawful, nor do I consider the Claimant can rely upon any legitimate expectation, nor do I consider that the Claimant has shown that the GMC has acted unlawfully in any way in relation to the non-recognition of his qualification.

Consequently, I must dismiss this application.

The GMC also rely upon the delay in bringing this claim. Given that permission has been given, and given my views on the substantive merits, I need not consider whether, had those merits been otherwise sufficient, any delay may have affected the relief granted.