Doctor's legitimate expectation

Court of Appeal

Regina (Patel) v General Medical Council

Before Lord Dyson, Master of the Rolls, Lord Justice Lloyd and Lord Justice Lloyd Jones

Judgment March 27, 2013

A British resident who had undertaken a long course of study by distance learning at an overseas university relying on e-mail assurances from the defendant, a professional medical body with responsibility for registering doctors, that he would be entitled to register his medical qualification once awarded after completing all the clinical requirements, had a legitimate expectation of registration. The defendant body was not entitled to defeat that expectation by refusing him registration because the criteria for accepting overseas qualifications had since changed.

The Court of Appeal so held, allowing the appeal of the claimant, Dr Sailesh Patel, against the dismissal by Mr Justice Hickinbottom ([2012] EWHC 2120 (Admin)) of his claim for judicial review of the decision of the defendant, the General Medical Council (GMC), to refuse to accept his primary medical qualification from the International University of Health Sciences, St Kitts and Nevis as an acceptable overseas qualification under section 21C of the Medical Act 1983, as inserted by the Medical Act 1983 (Amendment) and Miscellaneous Amendments Order 2006 (SI 2006/1914).

Mr Richard Drabble, QC and Ms Kate Beattie for the claimant; Ms Eleanor Grey, QC for the GMC.

LORD JUSTICE LLOYD JONES said that under the Medical Act 1983 the GMC was responsible for registering and regulating doctors within the United Kingdom. Sections 21B and 21C, as inserted, provided for the registration of doctors with overseas qualifications.

The real substance of the appeal lay in the legitimate expectation claim. A statement or representation could only be relied upon as giving rise to a legitimate expectation if it was “clear, unambiguous and devoid of relevant qualification”: see R v Inland Revenue Commissioners, Ex parte MFK Underwriting Agents Ltd ([1990] 1 WLR 1545, page 1569).

To derive a legitimate expectation from a previous policy it was necessary to establish “a specific undertaking, directed at a particular individual or group by which the relevant policy’s continuity was assured”: see R (Bhatt Murphy) v Independent Assessor (The Times July 21, 2008; [2008] EWCA Civ 755, para 43). That was a high preliminary hurdle.

A further requirement was for the party who sought to rely on the statement or representation to have placed all his cards on the table. The claimant could not have done more to make his intentions clear to the GMC.

The claimant had received a clear, unequivocal and unqualified assurance from the GMC in an e-mail of November 16, 2004, that if he completed the proposed course in a reasonable time the GMC would recognise the qualification.

As a result of the claimant’s repeated requests for clarification, the assurance given was a pressing and focused representation, which was required for a substantive legitimate expectation to be upheld and enforced: see Bhatt Murphy, paras 46–47.

The scheme of the Medical Act 1983 did not exclude the principle of legitimate expectation in those circumstances.

As the law on legitimate expectation had developed a distinction had been drawn between a procedural expectation to be consulted or involved in the decision making process before there was a departure from the assurance given, on the one hand, and an expectation to enjoy the substantive benefit or advantage promised, on the other. The claimant wanted his qualification to be recognised and so the case came within the second category.

The GMC was clearly entitled from time to time to adopt a new policy on the recognition of overseas qualifications and might well be under a duty to do so. The new criteria adopted in 2006 and 2010 were lawful.

The question was much more specific: was there a sufficient public interest to justify changing the rules to deny recognition to qualifications obtained after study with a substantial distance learning element without making transitional provisions for the claimant who had received an assurance that his qualification would be recognised if obtained within a reasonable time. The GMC had to prove that its refusal to honour its assurance to the claimant was justified in the public interest.

In considering the GMC’s justification the court had to give weight to the fact that it was an expert professional body charged by Parliament with the specific function of deciding which overseas medical qualifications should be recognised and that it was required to act to protect, promote and maintain the health and safety of the public.

Had the GMC been justified in refusing recognition without introducing any transitional provisions? When introducing its new rules on distance learning in 2006 and 2010, the GMC had not considered whether it had been necessary to do so with immediate effect or the consequences of doing so. That was sufficient to conclude that the decision to apply those rules ought to be quashed.

The GMC ought at the very least to have taken account of the impact of its decision on the claimant and anyone else who had received a similar assurance. Failure to do so vitiated the decision on Wednesbury grounds: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation ([1948] 1 KB 223).

Evaluating the unfairness of all the factors in support of the claimant’s case, it had not been open to the GMC to change its policy in 2006 or 2010 without adopting some transitional provision to cater for his case. There was no sufficient public interest outweighing that unfairness. The relief, specific to the claimant, would compel the GMC to recognise his primary medical qualification for the purposes of the Medical Act 1983.

Lord Justice Lloyd and the Master of the Rolls agreed.