England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)

		The Royal Courts of Justice The Strand London Tuesday 9 October 2001

Tuesday 9 October 2001

1. LORD JUSTICE SIMON BROWN: Dr Hollingworth claims to be entitled to have her name included in the specialist register provided for under the European Specialist Medical Qualifications Order 1995 as amended as a specialist in family planning pursuant to article 12(2)(c)(i) of that Order.
2. To qualify under that provision, the person concerned in the first instance has to satisfy the Specialist Training Authority ("STA") that "he has been trained in the United Kingdom in such a speciality and that training complied with the requirements relating to training in that speciality current in the United Kingdom at the time he undertook it".
3. Such a speciality, it has been common ground in the course of these judicial review proceedings, means the same as it means in article 12(2)(a), a provision which allows for a different way of qualifying for entry in the Register, namely where the person concerned "is, or has been, a consultant in the National Health Service in a medical speciality other than general practice".
4. Having failed to satisfy the STA of her entitlement under article 12(2)(c)(i), the applicant appealed to an appeal panel. As I understand it, and as Dr Watkins has confirmed to us this morning, that required the appeal panel to address the self-same question as originally faced the STA: had the applicant been trained in the United Kingdom in a medical speciality, and had that training complied with the requirements relating to training in that speciality current in the United Kingdom at the time she undertook it?
5. Before the appeal panel the applicant failed on two independent bases. First, and perhaps most fundamentally, the appeal panel concluded that family planning is not and was not at any material time a medical speciality. Secondly, they decided that even if, contrary to that view, it were properly to be so regarded, still the applicant did not satisfy the requirements of article 12(2)(c)(i).
6. The applicant sought judicial review of that decision, challenging each of those two conclusions. In refusing her permission to apply for judicial review on 15 June 2001, Munby J thought that there might well be some substance in her criticisms of the second limb of the appeal panel's conclusions, but he concluded that she had no properly arguable case with regard to the first limb, namely the appeal panel's conclusion that family planning is not a medical speciality. That, Munby J decided, was an unimpugnable conclusion.
7. That judgment I shared when first I was seised of this present application on the documents on 30 August. In refusing permission to appeal at that stage I said this:

"Despite the new 'evidence' submitted and the helpful 6 pages (marked A-F) entitled 'Grounds of the Application', I find myself in full agreement with Munby J on the all-important questions as to whether the appeal panel (a) failed to take account of the Registrar's contrary view as to whether family planning is a speciality and/or (b) wrongly supposed that the Registrar's view was not contrary to theirs on the basis that different tests applied to what constituted a medical speciality depending whether the circumstances fell under article 12(2)(a) or 12(2)(c)(i). I see no realistic prospect of success on either basis and would point out, as Munby J did, that the Registrar's view is not only referred to at para 43 of the panel's decision (in the section which postulates that, contrary to the panel's own view, no relevant speciality exists -- see para 29), but also at para 14 (in the section considering whether such a speciality exists)."

8. Having now had the advantage both of my Lord, Lord Justice Mantell's involvement in this renewed application and of some assistance this morning from Dr Watkins (who with our permission has presented argument on the part of Dr Hollingworth), I have come to be persuaded that the proposed challenge to the appeal panel's decision is indeed one that is properly arguable.
9. Let me briefly explain. The strength of the applicant's underlying case, that family planning should be recognised as a medical speciality for registration purposes, lies above all in the fact that, as recorded in paragraph 14 of the appeal panel's determination, 20 or more people have been given consultant status in that speciality and registered under article 12(2)(a). Because, as is common ground in these proceedings, 'medical speciality' means the same in article 12(2)(c)(i) as in article 12(2)(a), it necessarily follows that the appeal panel's view that family planning is not a medical speciality is diametrically at odds with that of the Registrar who registered those consultants in such a speciality.
10. The critical question for present purposes is, did the appeal panel recognise the inconsistency between their view and that of the Registrar? If they did, then, subject to a further fundamental point which Dr Watkins raises before us this morning, all well and good. On the face of it they were entitled to reach a different view from that of the Registrar and to conclude that his view was erroneous. Dr Watkins suggests that in fact there was only one view truly open to the appeal panel as a matter of law, and that is that in the light of the registration of those 20 consultants, family planning was indeed properly to be recognised as a medical speciality. But that appears to me a difficult argument. Let me proceed on the footing that the appeal panel were indeed entitled to reach a different view. They could not properly do so, however, without at least recognising that it was different and without taking proper account of the Registrar's contrary view. My earlier conclusion, in common with that of Munby J, was that they had clearly recognised that. Now, I confess, I am not so sure.
11. There are two reasons for this. In the first place, I am now struck by paragraph 27 of the appeal panel's decision in which they say "We are well aware that our finding in this regard differs from that of the Appeal Panel in the Horrocks decision .... " but say nothing as to being aware, too, that their finding necessarily differs also from that of the Registrar in registering 20 or more consultants in that very speciality.
12. The second reason is this. Having regard to the way in which it now seems clear the STA's argument was actually advanced before the appeal panel, it really does seem possible that the appeal panel actually thought that 'medical speciality' could bear a different meaning in article 12(2)(a) from that which it bears in article 12(2)(c)(i). Indeed, such a contention appears to have been advanced to the appeal panel and may even, contrary to my initial view, have been accepted by it in paragraph 43 of its determination. Accordingly I am persuaded that we should grant permission to apply for judicial review.
13. That will involve the matter returning to the Administrative Court as a substantive challenge. As I indicated in the course of discussion, Dr Hollingworth must realise that she therefore remains still at the beginning of a long haul. Her challenge on one or other or both limbs of her case could yet fail. Even, however, were it to succeed, she could still fail at the final hurdle of a redetermination by the appeal panel unless only her success on the substantive challenge were on the radical ground, propounded this morning, that the appeal panel had no option but to conclude, in the light of the registration of the 20 consultants, that family planning is indeed a medical speciality.
14. That, however is all for the future. For the present, I for my part would grant permission to apply for judicial review and remit this matter for substantive hearing in the Administrative Court.
15. LORD JUSTICE MANTELL: So would I, for the reasons given by my Lord.
ORDER: Application allowed