On Tuesday (14 October 2014) the High Court gave judgment in Sagar -v- Health Education England, a judicial review case concerning Health Education Yorkshire and The Humber’s (HEYH) decision to remove a GP from training. Hill Dickinson acted for the defendant and we are pleased to report that the claim for judicial review was dismissed.
The judgment considers issues of fairness and legitimate expectation in the context of appeals brought in accordance with the Gold Guide 2010 (A Reference Guide for Postgraduate Speciality Training in The UK), where a trainee has been released from a speciality training programme. The application of the Gold Guide 2010 is specific to postgraduate medical education, but the general principles of fairness and legitimate expectation have implications for other public bodies.
Dr Sagar commenced postgraduate training as a GP in 2010 and was released from the training programme in January 2013 because he had shown insufficient progress. Dr Sagar appealed although this was outside the procedure’s time limit; he relied on ill-health as an explanation for the delay.
The Gold Guide 2010 has an appeals procedure which provides for a two-step process: ‘Step 1’ involves a discussion with the trainee and ‘Step 2’ involves an appeal panel hearing.
HEYH’s postgraduate dean permitted the appeal to proceed out of time to a formal ‘Step 2’ appeal panel; no ‘Step 1’ discussion was held. Dr Sagar later requested a ‘Step 1’ discussion. The postgraduate dean declined this because a ‘Step 1’ discussion would serve no real purpose here, as the trainee knew of - and had accepted - the training deficiencies, it would also delay the process further and a ‘Step 2’ appeal panel would be likely to remain necessary. Dr Sagar attended the ‘Step 2’ appeal and participated in it.
In advance of the appeal, Dr Sagar was sent, by recorded delivery, the appeal documents; nevertheless he did not receive these documents. At the appeal hearing Dr Sagar was asked if he wished to postpone the appeal and, after taking advice from his representative, his treating psychiatrist, he decided to proceed with the appeal hearing.
The appeal panel upheld the decision to remove Dr Sagar from the training programme.
Grounds for permission for judicial review
Dr Sagar submitted an application for permission for judicial review to the High Court seeking permission to review the appeal panel’s decision. Dr Sagar sought an order quashing HEYH’s decision and an order requiring HEYH to revoke the decision and to be reinstated to the GP training programme in another region. At the hearing, Dr Sagar’s representative accepted that even if he succeeded he was not entitled to reinstatement or reinstatement in another region. What he was entitled to, was to have any aspect of the procedure, which had been unlawfully conducted, re-run.
Permission was granted for Dr Sagar to seek judicial review on three grounds:
- Whether a ‘Step 1’ discussion was mandated in Dr Sagar’s case and whether the failure to carry this step out rendered the appeal decision procedurally flawed. Alternatively, whether Dr Sagar had a legitimate expectation that a ‘Step 1’ discussion would take place.
- Whether the appeal panel acted unfairly in not considering and granting an adjournment in circumstances where Dr Sagar did not have sight of the appeal bundle prior to the commencement of the hearing.
- Whether Dr Sagar was provided with any, or adequate, reasons for the decision of the appeal panel (this was not pursued at the hearing).
The grounds raise issues of procedural fairness.
Mr Justice Dove dismissed Dr Sagar’s application for judicial review.
Absence of a ‘Step 1’
A ‘Step 1’ discussion is not a mandatory requirement of the Gold Guide 2010 and HEYH had good reasons for not holding it such that there was no breach of any legitimate expectation. Procedural fairness more generally in respect of the ‘Step 1’ discussion and ‘Step 2’ appeal was also considered and it was found not to be unfair in these circumstances for there to have been no ‘Step 1’ discussion.
‘Step 2’ appeal hearing – receipt of documents
The High Court found that there was nothing unfair in proceeding with the appeal hearing, despite Dr Sagar not having received the appeal bundle before the hearing. The judge commented that whilst the situation was unsatisfactory, that this did not render the appeal hearing unfair. He noted that Dr Sagar was aware he should have received documents in advance of the hearing and that he had been given the opportunity to seek a postponement of the hearing and, despite being advised by his representative to do so, chose to proceed. Considered as a whole, Dr Sagar had been able to address the issues raised during the appeal hearing. Dr Sagar’s contention that there should have been an adjournment amounted to saying that HEYH should have overridden his wish and adjourned the appeal.
Dr Sagar’s judicial review claim was dismissed.
This is an important case in the context of postgraduate education in the UK. The Gold Guide 2010 (which is now revised within the 2014 edition) is guidance that should be followed. However, it is not an absolute or mandatory requirement in all respects, especially where there is a reasonable basis for departing from it. Here, an appeal was allowed out of time as an exercise of discretion.
This case does example the degree of challenge that is available to those affected by training decisions. It also illustrates the examination to which those decisions can be put.
This case is of relevance outside the area of the NHS and education to public bodies generally.