England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION - ADMINISTRATIVE COURT
(Mr Justice Lawrence Collins)

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th April 2003

Lord Justice Keene:

1. In the mid 1990's an important change was made to the processes by which a medical practitioner could become a consultant in the National Health Service in this country. Before 1996, a Health Authority could appoint to the post of consultant any registered medical practitioner who could satisfy an Advisory Appointments Committee that he or she was suitable for the appointment. The safeguard was that under the applicable regulations, the National Health Service (Appointment of Consultants) Regulations 1982 (as amended), the Advisory Appointments Committee had to have a majority of medical practitioners on it, at least one of whom had to be a consultant in the relevant specialty appointed after consultation with the appropriate Royal College for that specialty. Moreover the practice was for the appropriate Royal College to approve the job description for the post. A Health Authority could not appoint a consultant whose name had not been submitted to it by such an Advisory Appointments Committee.
2. The 1982 Regulations did not contain any list of medical specialties. The definition of "consultant" in Regulation 2(1), after referring to someone specialising in the "relevant specialty", went on to say that it included "where such a specialty has not yet been established, a consultant specialising … in a specialty which in the opinion of the appropriate [Royal College] is closely related to the relevant specialty." The Royal College did operate a process of accreditation, which recognised the successful completion of higher specialist training, and in many areas of medicine it was difficult to obtain a consultant's post without such accreditation.
3. In the late 1980's and early 1990's a separate area of medicine emerged, sometimes described as family planning and reproductive health care (FPRHC). About 70 doctors went through the process just described of satisfying an Advisory Appointments Committee and were duly appointed as NHS consultants in this field.
4. But the European Specialist Medical Qualifications Order 1995 ("the 1995 Order") altered this system, in order to implement the United Kingdom's obligations under the Council Directive 93/16/EEC of 5 April 1993 ("the Directive"). The Directive was concerned with the facilitation of the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications. The 1995 Order, as its title suggests, dealt with the position of specialists within the medical profession. It required the General Medical Council ("the GMC") to keep and publish a register of specialists: Article 8(1). By Article 11 and Schedule 5 of the 1995Order a person may not take up appointment to any post of consultant in the National Health Service in a medical specialty other than general practice or in any more specialised field within such a specialty unless his name is included in the GMC's specialist register. That applied as from 1 January 1997.
5. Under this new system, there are broadly speaking two ways in which a medical practitioner can achieve the inclusion of his name in the specialist register. The first is by being awarded a certificate known as a Certificate of Completion of Specialist Training ("CCST"). For this purpose the 1995 Order established the Specialist Training Authority of the medical Royal Colleges ("the STA"). That authority, which is the respondent to these appeals, not only awards CCST's but also supervises and approves courses of medical training intended to lead to the award of a CCST. The second way of achieving inclusion in the specialist register is by being the holder of a recognised specialist medical qualification such as one granted in another country within the European Economic Area, or of specialist medical qualifications awarded outside the United Kingdom generally, so long as he satisfies the STA that these qualifications are equivalent to a CCST (if one exists in the specialty) or that they give him a level of knowledge and skill consistent with practice as a consultant in that specialty in the National Health Services. This is a somewhat crude summary of the provisions of Articles 9 and 10 of the 1995 Order, but it will suffice for present purposes.
6. This, then, is the long-term regime set up by that Order. It involves there being two competent authorities: the GMC for the recognition and registration of specialist medical qualifications and the STA for the purposes of specialist medical training and the issue of CCST's. But since the effect of the 1995 Order is that only doctors whose names feature on the specialist register can be appointed as consultants, some provision has had to be made for those specialists who were already practising (including those who were already consultants) to apply to be included on the register, so that they would be eligible in the future for posts as consultants. Consequently the 1995 Order contained transitional provisions in Article 12, which is headed "existing specialists".
7. Article 12 was later amended by a further Order in 1997 (S.I. 1997 No. 2928). Nothing turns on the date of that amendment and the Article can be set out in its amended form. It reads, insofar as material, as follows:

"(1) A person is entitled to have his name included in the specialist register if he applies to the Registrar of the GMC for the purpose before 1^st December 1998 … and satisfies him then or, in the case of a person who falls within paragraph 2(c), before 1^st December 2001 –

(a) that he is a registered medical practitioner …; and

(b) that he falls within paragraph (2)

(2) A person falls within this paragraph if –

(a) he is, or has been, a consultant in the National Health Service in a medical specialty other than general practice; or

(b) he has been accredited in such a specialty; or

(c) he has satisfied the STA that –

(i) he has been trained in the United Kingdom in such a specialty and that training complied with the requirements relating to training in that specialty current in the United Kingdom at the time he undertook it, or

(ii) he has qualifications awarded in the United Kingdom in such a specialty which, together with any experience which he has in the specialty in question and any further training which he had undertaken at the recommendation of the STA under paragraph 2B, give him a level of expertise equivalent to the level of expertise he might reasonably be expected to have attained if he had a CCST in that specialty.

(2A) The STA shall before 1^st November 1998 determine in respect of each person who applies to it before 1^st April 1998 for the purpose of sub-paragraph (2), whether or not it is satisfied as mentioned in that sub-paragraph.

(2B) Until 1^st November 1998 the STA may for the purposes of sub-paragraph 2 (c)(ii) recommend that a person undertake such further training in the medical specialty in question not exceeding twelve months duration as the STA considers is required to give that person a level of expertise equivalent to the level of expertise he might reasonably be expected to have attained if he had a CCST in that specialty.

(2C) A person falls within this paragraph if the STA has made a recommendation under paragraph (2B) that he undertake further training for the purpose of sub-paragraph (2)(c)(ii)."

It is with these transitional provisions that these appeals are concerned.

8. The structure of Article 12 is such that the Registrar is required to include a person's name in the specialist register, so long as an application is made in time, if he is satisfied that certain conditions have been met. The first and basic one is that the person is a registered medical practitioner. The second condition can be met in any one of several ways. If the Registrar is satisfied that the applicant is or has been a consultant in the NHS "in a medical specialty other than general practice", that will suffice: Article 12(2)(a). If the Registrar is satisfied that the applicant has been accredited "in such a specialty", then again the second condition is met: Article 12(2)(b). But the second condition may also be met by satisfying the STA of either one of two things, and the one with which these appeals are concerned is Article 12(2)(c)(i), namely that:

"he has been trained in the United Kingdom in such a specialty and that training complied with the requirements relating to training in that specialty current in the United Kingdom at the time he undertook it." (Emphasis added).

9. The principal issue is whether FPRHC qualifies as a specialty for this purpose. In respect of the three appellants the STA has taken the view that it does not and that decision was upheld by three appeal panels before which the matter came. It should be noted that, in a previous case involving a Dr Horrocks, an appeal panel had held that there was strong evidence that a consultant-led discipline had existed in the field of family planning since 1990 and that Dr Horrocks should be admitted to the specialist register under Article 12(2). However, that was not the conclusion reached in respect of any of the three appellants.
10. In Dr Hollingworth's case, the appeal panel concluded that FPRHC was too narrow an area of medicine to be a specialty in its own right. It was to be seen rather as part of the recognised specialty of Obstetrics and Gynaecology. They accepted that she had extensive experience in FPRHC, and had sought training in certain areas, and that a doctor could properly be regarded as undergoing the training in the skills and abilities necessary to achieve the required standard in a specialty by a mix of formal and experiential training. But her training fell short of that which would have been undergone by someone who had specialised in Obstetrics and Gynaecology and then sub-specialised in community gynaecology, the nearest thing to the alleged specialty.
11. The appeal panel in Dr Khan's case likewise concluded that no specialty existed in FPRHC, and therefore they judged whether she met the criteria under Article 12(2)(c)(i) in terms of the training required for Obstetrics and Gynaecology. They accepted that she was "clearly eminent in her field" but were not prepared to assess the adequacy of her training merely by reference to the area of FPRHC. In Dr Kundu's case the appeal panel also concluded that there was "no new specialty of Family Planning" and that he did not have sufficient training in the specialty of Obstetrics and Gynaecology.
12. There is no doubt that all three appellants are acknowledged to have extensive experience and qualifications in FPRHC. Dr Hollingworth qualified in 1978 and practised initially as a G.P. From 1984 to 1999 she was a senior clinical medical officer and clinical teacher at the Margaret Pyke Centre in London. Since 1999 she has been Clinical Lead in Reproductive Health for Redbridge, Barking, Havering and Brentwood. That post has consultant terms and conditions and was originally envisaged as a consultant post. In addition, Dr Hollingworth is a Regional Assessor for the Faculty of Family Planning and Reproductive Health Care of the Royal College of Obstetricians and Gynaecologists ("RCOG") and an examiner for the membership examination of that Faculty.
13. Dr Khan is an obstetrician/gynaecologist. She qualified in India and then became a Member of RCOG in 1981 and a Fellow of RCOG in 1996. She is head of Community Gynaecology Development at Mancunian Community Health Trust (North Manchester General) and is paid on the consultant scale. She is involved in postgraduate teaching in obstetrics and gynaecology and reproductive health care at Manchester University. Perhaps of particular note is the fact that in 1995 she was short-listed for a consultant post in family planning and reproductive health care approved by an Advisory Appointments Committee. Although in the event she was not appointed to the post, she was clearly regarded as suitably qualified for such an appointment as a consultant.
14. Dr Kundu qualified in India and became MRCOG in 1996. Since 1997 he has been Senior Clinical Medical Officer/Head of Contraception and Sexual Health Services at St Michael's Hospital, Lichfield, Staffordshire. He was appointed to that post when it was vacated by the consultant in Contraception and Sexual Health. Again, it is of significance that the appointment panel considered that he fulfilled the training and skills requirement of the consultant post. The only reason why he could not be appointed as a consultant was because by then the 1995 Order was in force and he was not on the specialist register. He is involved in the teaching and assessment of medical students and doctors, examines for the Central Lancashire University and is an Honorary Senior Lecturer at Wolverhampton University.
15. The appellants applied for judicial review of the decisions of the STA appeal panels, but their applications were rejected by Lawrence Collins J. The argument was advanced before him that the Registrar of the GMC had admitted to the specialist register the 70 or so doctors who had been NHS consultants in the past in family planning, that decision being made by the Registrar under sub-paragraph (a) of Article 12(2), that the word "specialty" must have the same meaning in the sub-paragraphs (a) and (c), and that it must include something recognised by the Registrar under (a) as a specialty. It was also submitted that Parliament cannot have intended that the STA could decide that something was not a specialty even though consultants had been appointed in it before 1997.
16. The judge, however, took the view that it was for the STA to decide under these transitional provisions what was a medical specialty. Since there were different bodies entrusted with decision-making under Article 12, namely the Registrar of the GMC under Article 12(2)(a) and the STA under Article 12(2)(c), the STA could not be seen as being bound by a prior decision by the Registrar on this issue. Therefore it was for the STA to decide whether FPRHC was a medical specialty and no grounds for interfering with its decision on this had been established.
17. Before this court, the appellants contend that the judge misunderstood their argument, which is not that the STA was bound by the Registrar's decision that FPRHC was a specialty for the purpose of the transitional provisions but rather that the Registrar correctly interpreted those provisions and the STA did not. Dr Watkins, whom we permitted to speak on behalf of the appellants, submits that the word "specialty" must have the same meaning throughout Article 12. Consultants were appointed in the past in FPRHC with the approval of the RCOG, since that body advised the Advisory Appointments Committees, and the RCOG must therefore have regarded FPRHC as at least an emerging specialty. The appellants are as well qualified as those who were formally appointed as consultants in this field and who have been admitted to the specialist register. The same standards should be applied to both groups, and if (as is the case) the appellants would have satisfied an Advisory Appointments Committee prior to 1997, they qualify under these transitional provisions.
18. On behalf of the STA, Mr Havers, Q.C., acknowledges that the relevant Royal College had, under the pre - 1997 system, to approve the job description for a consultancy post and its consultancy status. But he submits that that did not involve describing any particular area of medicine as a specialty. Nor could the fact that such consultant appointments in family planning had been made by NHS employers in the past bind the STA as to the free-standing decision which it had to make under Article 12(2)(c)(i). So far as the decision of the Registrar is concerned, the structure of Article 12 is such that there are two separate decision-makers, as the judge emphasised, and neither is bound by decisions of the other. There is nothing to indicate that the Registrar carried out any investigation into whether FPRHC was a specialty before registering the existing NHS consultants. Here the STA appeal panels did expressly consider that issue, and there is no basis for interfering with their decision. They considered the arguments put before them by the appellants and clearly took into account the relevant evidence on this issue. They have given detailed reasons for their decisions. Their conclusions cannot be regarded as perverse.
19. Mr Havers does accept that the word "specialty" must mean the same thing throughout Article 12 and therefore has the same meaning in Article 12(2)(c) as in Article 12(2)(a). Yet it is not in dispute that the 70 doctors who had been appointed NHS consultants before 1997 in FPRHC have been admitted by the Registrar to the register of specialists. Somewhat reluctantly Mr Havers acknowledged that his submission had to be that the Registrar was wrong to have admitted those existing consultants to the register. Thus, they could have remained as NHS consultants in their existing posts, but would have been unable to move to another post, whatever the circumstances, without undergoing further training so as to qualify as a specialist in obstetrics and gynaecology.
20. This would seem a remarkable result, creating as it would in effect a category of NHS consultants not entitled under the transitional provisions to be put on the register of specialists and not entitled to take up any new consultant post. It is, of course, possible that that is the result of the transitional provisions, and if the respondent's argument is right, then that is indeed the consequence. They are left in a sort of limbo. But it must call into question whether Parliament intended such a strange outcome. If it did not, and if the Registrar was in fact right to register those 70 existing consultants, then Mr Havers concedes that his submission must be rejected.
21. I turn therefore to consider the interpretation of Article 12. It is important to bear in mind that the Article is setting out transitional provisions. In broad terms it is dealing with those who, by one means or another, should be regarded as entitled to admission to the specialist register without having to meet the new long-term requirements set out in the earlier part of the Order. If one adopts a purposive approach to the construction of Article 12, one can readily see that it was intended to protect those who had already achieved a certain status, so long as they applied to the Registrar within the time limit.
22. That is why existing NHS consultants are covered by Article 12(2)(a). The words in that sub-paragraph "in a medical specialty other than general practice" were not intended to exclude existing consultants, save for those who were caught by the reference to "general practice". The 1982 Regulations, referred to at the beginning of this judgment, clearly assumed that a consultant was someone appointed in a specialty. That can be seen repeatedly in those Regulations dealing with the appointment of consultants. Thus, Regulation 2(1) refers to "the specialty in which the appointment will be made". The definition of "consultant" in Regulation 2(1), quoted in paragraph 2 of this judgment, makes the same point. In essence, a consultant is someone who specialises in a specialty. That was the existing situation with which the 1995 Order had to deal in its transitional provisions. In my judgment, therefore, the Registrar was right to admit the 70 existing NHS consultants in FPRHC to the register of specialists. As consultants, they were specialists.
23. In the same way, Article 12(2)(b) protects those who have not been appointed to a consultant post but who have been recognised formally by means of accreditation as qualified for such a post. Article 12(2)(c)(i) then deals with those who were qualified to become consultants because they had been trained in the past in that speciality to the extent required at the time, but who were not in fact appointed as consultants. It seems to me that the whole Article has as its purpose enabling those doctors to go on the specialist register who were either NHS consultants at the relevant time or who were qualified to be appointed as such. It is in that context that the word "speciality" has to be approached in sub-paragraph (c) as elsewhere in the Article, as being part of the concept of a consultant, not as something which distinguished between one group of consultants (or potential consultants) and another such group.
24. Where the appeal panels went wrong in the present case is exemplified in the decision on Dr Hollingworth's appeal. At paragraph 43, the panel said this:

"We appreciate that a not insignificant number of Family Planning Consultants have already been included on the Specialist Register, but we consider a distinction must be drawn between existing Consultants in the field appointed with similar qualifications and experience prior to the establishment of the Specialist Register who gained entry onto it under the provisions of Article 12(2)(a), and those individuals presently occupying a Consultant role/Clinical Lead, who have neither been formally appointed as a specialist by the appropriate Appointments Advisory Committee, nor obtained the appropriate qualifications to obtain a CCST for entry onto the Register, but who are appointed to posts with Consultant terms and conditions. We do not accept the submission on behalf of the Appellant that Article 12(2)(c)(i) is intended to catch individuals like Dr Hollingworth, rather we consider Article 12(2)(a) was inserted to deal with the actuality of doctors having been appointed as Consultants via unorthodox routes and Article 12(2)(c)(i) was inserted to ensure that once the Order came into force such anomalies would cease and all doctors would have to meet recognised standards of training and qualifications before being appointed as Consultants. It is unfortunate that Dr Hollingworth had not been appointed as a Consultant by the time the Order came into force but that does not mean she should be allowed a "second bite at the cherry" after the regulations have been tightened up."

25. The approach adopted there by the panel in respect of Article 12(2)(c)(i) would have been understandable if they had been dealing with the new long-term situation introduced by the Order, rather than with transitional provisions. The latter, by their very nature, were concerned with those who did not necessarily meet the new requirements but were nonetheless entitled to be treated as specialists. With the transitional provisions, one is not looking forward to the new regime being set up, but back to the previous state of affairs. It is noticeable that the panel seem to suggest that it is possible to distinguish between those who had been consultants in FPRHC and those with "similar qualifications and experience" who had not. That is not a distinction maintained by the respondent on these appeals and, in my judgment, rightly so.
26. I therefore conclude that the appeal panels adopted the wrong approach when dealing with what is a "specialty" for the purposes of Article 12. It must mean no more than a field of medicine in which consultants had been appointed in the past.
27. A further point was advanced on behalf of the STA, to the effect that the appeal panels had also rejected the appeals because the appellants had inadequate training for appointment as consultants in FPRHC. I regard that argument as unsustainable in each of these three cases. The appeal panels seem to have assessed the adequacy of the appellants' training by reference to that required for a consultant's post in obstetrics and gynaecology, not one in FPRHC. Dr Khan had already been short-listed for a consultant post in 1995 in FPRHC approved by an Advisory Appointments Committee (see paragraph 13 of this judgement). Dr Kundu in 1997 was appointed to a post previously filled by a consultant and was only denied that status because he was not on the specialist register under the new 1995 Order, and the panel expressly found that he had a level of expertise equivalent to an award of a CCST in the sub-speciality of community gynaecology. In his case the panel rejected his appeal under Article 12(2)(c)(i) principally on the basis that there was no speciality of FPRHC. None of the panels seem to have considered whether the appellant in question had complied with the requirements relating to training in the speciality of FPRHC current in the United Kingdom at the time he or she undertook training. I therefore am wholly unpersuaded by the STA's second argument.
28. It follows that in my judgment the appeal panels of the STA erred in law in dealing with these three appeals, and their decisions should therefore be quashed. Counsel addressed us during argument on the topic of whether, in such an eventuality, the matter should be remitted to the appeal panels for redetermination. Both sides submitted that this court should decide whether or not the appellants met the terms of Article 12(2)(c)(i), if we felt able to do so, rather than remit the matter. For my part, on the evidence recorded by the appeal panels, I am satisfied that there could realistically only be one outcome, were these appeals to be remitted for redetermination in accordance with the proper approach in law to these provisions as described in this judgment, namely that each of the appeals would have to be allowed. It is clear that the criteria in Article 12(2)(c)(i) are in fact met, once the correct legal interpretation is adopted.
29. I would, therefore, allow these appeals and, if desired by the parties, make a declaration that each of the three appellants at the relevant time satisfied the terms of Article 12(2)(c)(i).

Lord Justice Mantell:

30. I agree.

Lord Justice Simon Brown:

31. I also agree.
ORDER: The appeals be allowed, the decisions of the Appeal Panel of the Specialist Training Authority be quashed and there be substituted for them declarations that the appellants meet the requirements of Article 12(2)(c)(i) of the European Specialist Medical Qualifications Order 1995 (as amended). The respondent to notify this decision to the Registrar of the General Medical Council as being the outcome of the judicial review of appeals made within time under Article 13 of the Order. The costs orders made in favour of the respondent in the court below be quashed. Any monies paid under them to the respondent be repaid to the payers. The respondent do pay the reasonable costs of the appellants in this court and below in a sum to be agreed, or in default of agreement to be assessed by the court, and in a manner agreed or in default of agreement to be directed by the court. (Order not part of approved judgment)