Judgment date: 27 March 2013

The Court of Appeal considers doctrine of legitimate expectation in the context of eligibility criteria for registration with professional regulator.

Dr Patel (P) appealed against the order of Hickinbottom J. dismissing his application for judicial review of 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) as an acceptable overseas qualification. As a consequence he has been unable to take a competency and linguist examinations set by the Professional and Linguistics Assessment Board (PLAB) or undertake a placement in a NHS hospital for Foundation Year 1. The High Court decision was in July of last year and our summary of the case can be found here: Case Update: Patel v General Medical Council [2012] EWHC 3688.

Background

The history and detail of the changes to the relevant registration provisions is lengthy and complex and can be found within the full judgement. For the purposes of this summary, it suffices to say that in November 2004 P entered into a chain of email correspondence with the GMC (produced at 16-24 of the judgement), asking them whether they would accept the primary medical degree from IUHS, which included a distance learning, pre-clinical element. The material, ultimate response was on 16 November 2004;

‘The General Medical Council accepts the primary medical degree awarded from the 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’.

Thereafter, P enrolled in the MBBS course at the IUHS and undertook the studies between 2005 and 2011. The pre-clinical studies were by distance learning (apart from 2 months at St Kitts). Having successfully passed the relevant examinations, P then completed his supervised clinical rotations at a number of hospitals in London, Surrey and Sussex. He passed all rotations, achieving honours in 13 out of 19 of them. He completed his MBBS with distinctions in July 2011. The total expenditure on this endeavour was approximately $40,000. 

P then needed to undertake a foundation year at a UK hospital, and thus needed to pass the PLAB examination and to obtain GMC provisional registration. In response to P’s query, the GMC responded;

‘Having considered the information provided to us, it appears your PMQ is not currently acceptable to the GMC: this is because Point 5 of the criteria [i.e. paragraph e] requires that at least 50% of the standard course of study is undertaken in the country that awards the qualification.’

This position was as a result of new criteria adopted by the GMC in 2006 and 2010.

The High Court

It was held by Hickinbottom J that the GMC had not fettered their discretion with the new criteria, nor was it irrational for them to insist on a requirement that goes to ensure that an awarding institution has a proper degree of control and supervision over the period of study. The learned Judge went on to find that, in relation to the claim by P that the GMC had frustrated a legitimate expectation,

‘There is simply no clear and unequivocal representation in the terms suggested…there is no representation as to the future, or that the GMC would not change the criteria for acceptable overseas qualification in the future. ‘It was held that it was not reasonable in the circumstances for P to consider that the representation included a promise by the GMC that it would not change the criteria during the period P was involved in obtaining it.

Court of Appeal

The two grounds of appeal fell into two categories;

  1. challenges to the new criteria adopted by the GMC in 2006 and 2010, and
  2. challenges founded on legitimate expectation. 

In relation to 1), the Court upheld the decision of Hinkinbottom J that the provisions did not unlawfully fetter the GMC’s discretion and that it was not irrational for them to insist on the requirements that they did.

However, they overturned the decision of the High Court in relation to its findings regarding legitimate expectation.

Ruling on legitimate expectation

Giving the judgement of the Court, Lloyd Jones LJ held that the ‘high preliminary hurdle’ that before a statement or representation can be relied upon as giving rise to a legitimate expectation it must be ‘clear, unambiguous and devoid of relevant qualification’ (R v IRC, ex parte MFK Underwriting [1990] 1 WLR 1545 and R v IRC, ex parte Unilever plc [1996] STC 681), was passed in this case. 

The submission on behalf of the GMC (and indeed the view of the lower Court), that the response was limited to a statement of the current position, with no promises for the future, was rejected. The question for consideration was how, on a fair reading of the statement, it would have been reasonably understood by those to whom it was made (Association of British Civilian Interenees – Far Eastern Region v Secretary of State for Defence [2003] QB 1397 per Dyson L.J. para 56). Applying that question, it was held that;

‘on a fair reading in its context, it would reasonable have been understood by the recipient as an assurance in relation to the future. It is clear that the appellant understood it that way and that this was followed by detrimental reliance on the assurance by the investment of time, effort and money in the years which followed in obtaining the qualification.

I am satisfied therefore that the appellant received a clear, unequivocal and unqualified assurance from the Registration and Education Directorate of the GMC, in the email of 16 November, the effect of which was that if he completed the proposed course in a reasonable time the qualification would be recognised by the GMC. [47-48]

The further requirement that the party seeking to rely on the statement must have placed all his cards on the table was also satisfied; P had made entirely clear what his plan was.

To give rise to a successful claim founded on legitimate expectation, the representation must be a ‘pressing and focussed’. In the case of Bhatt Murphy v The Independent Assessor [2008] EWCA Civ 755, at 46-37, Laws LJ suggested that while in theory there may be no limit to the number of intended beneficiaries of a promise for the purpose of legitimate expectation, in reality it is likely to be small if it is to be upheld because it is hard to imagine a case where, for example, a government would be held legally bound by a representation made generally or to a diverse class. The broader the class claiming the benefit, the more likely it is that the supervening public interest would be held to justify the change of position. In this case, P’s repeated requests for clarification in his emails focuses attention ‘very effectively’ on his specific position. Therefore this requirement was held to be satisfied.

The submission on behalf of the GMC that the reliance by P on the representation in the email was contrary to the terms of the Medical Act 1983, which states that the definition of an ‘acceptable overseas qualification’ is only one that is ‘for the time being’ accepted, was rejected. It was held that ‘the statutory duty has to be exercised in accordance with established principles of substantive fairness’ [55].

The Court reminded itself that the initial burden lies on the appellant to prove the legitimacy of the expectation, and if he wishes to bolster his case, that he had relied upon that expectation to his detriment. Once proved, the onus shifts to the authority to justify the frustration of the legitimate expectation (Paponette v AG of Trinidad and Tobego [2012] 1 AC). The question for the Court was therefore this; was there a sufficient public interest to justify changing the rules so as to deny recognition to qualifications which were obtained following a course of study which involved a substantial distance learning element, without making transitional provision for the case of P who had received an assurance that his qualification would be recognised if obtained within a reasonable time? It was for the GMC to prove that its refusal was so justified.

It was argued on behalf of the GMC that they are required to act to protect, promote and maintain the health and safety of the public and that the adoption of the new 2006 criteria was in response to a general problem. The Registration Committee had taken a reasoned and considered decision to make the changes they did. The papers that they considered before they did so reflected a clear view by the GMC that a substantial distance learning element in a course leading to PMQ is undesirable because it does not permit sufficient engagement between teachers and students. However, no specific danger to the public was actually identified. At the hearing it was contended that there were a number of reasons why the change was implemented; e.g. to avoid ‘graduate tourism’ and situations where there was no genuine link to the institution purportedly awarding the degree. It was viewed by the Court that a number of these factors were not apparent from the contemporaneous documents but may have been retrospectively applied as ex post facto justification. There was no evaluation of the degree of risk arising from distance learning itself. It was held to be highly relevant by the Court that in this case, prior to being able to practise independently, P would have had to pass a number of further tests, including his Foundation Years 1 and 2, under supervision.

The Court held as follows;

‘To my mind the reasons advanced by the GMC are less than compelling as a justification for introducing the new policy with immediate effect and without mitigating measures for those already committed to courses’ [75]

It is a striking feature of the present case that there is no evidence that the GMC, when introducing its new rules in relation to distance learning in 2006 and 2010, gave any consideration to the effect of the introduction of the new rules on those currently following courses involving a high proportion of distance learning’ [ 77]

This was held to be sufficient to lead to the conclusion that the decision to apply these rules to P should be quashed, on Wednesbury grounds. It was said that;

‘at the very least, the GMC should have taken account of the impact of its decision to depart from its previous policy with immediate effect on the appellant and anyone else who received a similar specific assurance’.

This was not sufficient, however, to dispose of the appeal; the decision would not prevent the GMC from reconsidering the matter and taking a new decision. 

The Court went further, stating that ‘the omission of the GMC to consider the impact of its change of policy on those currently pursuing distance learning courses has a wider significance.’ The Court considered that, given that this case the assurance was directed to P personally and not to a larger class of people, given the important of the expectation to P and the detrimental reliance placed on it and given that the number of persons who may be affected by upholding the legitimate expectation in this case is likely to be small;

‘It was not open to the GMC to change its policy in 2006 or again in 2010 without adopting some transitional provision that would cater for the case of this appellant. I am unable to identify any sufficient public interest which outweighs the unfairness to the appellant of refusing to honour the assurance given and to recognise his qualification.’

Regulators must ensure that before changing any registration or admission criteria, they make fully reasoned and considered decisions, based on hard evidence, as to the necessity for that change. They must also consider all of those individuals who may have already embarked upon courses that would no longer qualify and take steps to introduce transitional measures to mitigate such a situation. Without a sufficient, tangible, and evidence based public interest identified, it is likely to be unlawful. This case also clearly and helpfully summarises the case law with regards to legitimate expectation.