Personal Injury analysis: When can the General Medical Council (GMC) reject a medical professional's application to be registered as a specialist? Julie Norris, Lucy Williams examine the Court of Appeal's decision in GMC v Nakhla.
General Medical Council v Nakhla  EWCA Civ 1522,  All ER (D) 07 (Dec)
The respondent surgeon's application for registration as a specialist in trauma and orthopaedic surgery was refused by the appellant GMC registration appeal panel (RAP). The county court judge allowed the respondent's appeal and identified what it determined to be legal errors in the panel's decision. The Court of Appeal, Civil Division, in allowing the GMC's appeal in part, held that, with one exception, the legal errors that the judge had identified had not been errors at all. Subject to that point, the panel had correctly directed itself in law.
What does this case tell us about the regulatory structure for the registration of specialists?
There are two avenues by which a doctor can be included in the register of specialist medical practitioners (the specialist register).
First, under the Medical Act 1983, s 34L (MeA 1983), an individual who has a certificate of completion of training (CCT)--a relevant and approved course of training--is entitled to be included on the specialist register.
Second, MeA 1983, s 34D(2)(c) provides that the specialist register 'shall' contain the names of registered medical practitioners who fall 'within such other categories as the Privy Council may by order specify'. The Privy Council used this power to make the Postgraduate Medical Education and Training Order of Council 2010, SI 2010/473 (the Order).
This Order provides (at arts 7 and 8) that individuals are eligible to be registered in the specialist register on two bases:
- if they are exempt persons and hold a recognised specialist qualification granted outside the UK as specified in art 10
- if they have undertaken specialist training or been awarded specialist qualifications in a recognised specialty and they satisfy the Registrar that the training or qualifications are equivalent to a CCT
The first route under the Order is similar to the CCT route, in that a specific qualification is needed. The second route however allows applicants to be included on the list when they have alternative training and Page 2 qualifications, provided that this is considered by the Registrar to be equivalent to a CCT. It was this 'equivalence route' by which Mr N applied for specialist registration.
Are the courts likely to exercise their powers to order the Registrar to include a practitioner on the specialist register?
If the RAP decides not to allow an appeal of a decision of the Registrar, a medical practitioner may appeal further to the county court, as Mr N did. This court has the power to allow or dismiss the appeal, remit the case back to the RAP or to order the Registrar to include a medical practitioner in the specialist register.
The county court will only order the Registrar to include a medical practitioner in the specialist register where this would be the only realistic outcome were the case to be remitted to the RAP.
The county court will allow an appeal where the decision under appeal was wrong or unjust because of a serious or other procedural irregularity. As has been well established in appeals in professional disciplinary proceedings, the appeal court will be reluctant to overturn findings of fact or evaluations of those facts made by a specialist tribunal which has seen the witnesses, particularly in questions of expertise.
What were the key issues in this case?
The ultimate question for the Registrar was whether Mr N's qualifications or training or both were equivalent to a CCT. The word 'equivalent' was held by the Court of Appeal not to mean 'identical', but whether:
'[...] the applicant's qualifications or training, or both, coupled with his medical knowledge and experience, are equal in value to the knowledge and skills that would have been recognised by the award of a CCT.'
This is a value judgment and must depend on what the CCT syllabus in the relevant specialty required. The training and qualifications, whenever obtained must now be equivalent to a CCT in the specialty. This is essentially a question of medical and specialist judgment of the RAP.
What are the legal challenges around the registration of medical professionals in the UK?
Where a medical professional does not hold a CCT and therefore wishes to apply to be included in the specialist register under the 'equivalence' route, the challenge will be demonstrating that their knowledge and experience are of equivalent value to that which would have been recognised in the current CCT syllabus in that specialty.
What should lawyers take from this decision? How might this affect future appeals?
An appeal of a decision of the RAP is unlikely to be successful where it is based on a mere assertion that the RAP was wrong in its assessment of the equivalence of the applicant's training and qualifications to the relevant CCT. The RAP will have been in the best position to make this assessment, having specialist knowledge and the benefit of having heard evidence. The courts will be slow to interfere with a value judgment by a professional tribunal.
This article first appeared in Lexis PSL Personal Injury in December 2014, interview conducted by Alex Heshmaty