British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> General Medical Council v Nakhla [2014] EWCA Civ 1522 (28 November 2014)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/1522.html
Cite as: [2014] EWCA Civ 1522, [2014] WLR(D) 510
[New search] [Printable RTF version] [View ICLR summary: [2014] WLR(D) 510] [Help]
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
Her Honour Judge Faber
3BF02118
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE LEWISON
and
LORD JUSTICE BURNETT
____________________
| GENERAL MEDICAL COUNCIL |
Appellant |
|
| - and - |
||
| AMGAD NAKHLA |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Amgad Nakhla (not represented) the Respondent
Hearing dates : 19 and 20 November 2014
____________________
Crown Copyright ©
- Mr Nakhla has been practising as a surgeon in the UK since May 2006. Before 2005 he practised as a surgeon in Egypt, which is also where he trained. In November 2008 he was accepted as a Fellow of the Royal College of Surgeons, having passed the FRCS (Trauma and Orthopaedics) examination. He has been working as a Locum Consultant Orthopaedic Surgeon at Basildon and Thurrock University Hospitals since April 2012. His specialty is in the lower limbs, especially knees and hips. In January 2012 he applied to the General Medical Council (the "GMC") to be registered as a specialist in Trauma and Orthopaedic Surgery ("T & O"). Registration is a necessary pre-condition to permanent appointment as an NHS consultant. His application was rejected by the Registrar, whose decision was upheld by the GMC Registration Appeal Panel ("the RAP"). He appealed to the county court against the decision of the RAP; and on 30 May 2014 HH Judge Faber allowed his appeal. The GMC now appeal to this court.
- The GMC is a body corporate, established by statute, whose main objective is to protect, promote and maintain the health and safety of the public: Medical Act 1983 s. 1 (1A). It is required by statute to have a number of committees, including a Registration Panel and the RAP.
- Part IVA of the Act deals with Postgraduate Medical Education and Training. Under section 34L of the Act the Registrar must:
- The award of a CCT entitles its holder to be entered on the register of specialist practitioners. This register is kept by the Registrar under section 34D of the Act, which provides:
- Thus holding a CCT is not the only route to entry on the Specialist Register. In exercise of the power contained in section 34D (2) (c) the Privy Council made the Postgraduate Medical Education and Training Order of Council 2010 ("the Order"). Article 7 of the Order provides that persons are eligible to be registered in the Specialist Register if they are "eligible specialists as specified in article 8". Article 8 provides, so far as relevant:
- A person who satisfies these requirements is given a Certificate of Eligibility to Specialist Registration (a "CESR", pronounced as in Julius). Since the Specialist Register "shall" contain the names of those who fall within the specified categories, it seems to me to follow that if an applicant satisfies the criteria in article 8 of the Order, the Registrar must include his name in the Register.
- A decision not to include someone's name in the Specialist Register is an "appealable decision": Medical Act 1983 Schedule 3A para 2A. The appeal lies to the RAP: Schedule 3A para 4 (1). Paragraph 4 (8) provides:
- An appeal from the RAP is given by paragraph 5:
- The powers of the appeal court are also given in Schedule 3A paragraph 5. In addition to the power to dismiss or allow the appeal, or to remit the case to the RAP, the appeal court may.
- Thus the court has power to order the Registrar to include a medical practitioner in the Specialist Register. The exercise of that power would only be appropriate where the court is satisfied that there could, realistically, only be one outcome were the appeal to be remitted to the RAP: Hollingworth v Specialist Training Authority of the Medical Royal Colleges [2003] EWCA Civ 452 at [28].
- Unlike many appeals to the court from specialist tribunals, an appeal to the county court from the RAP is not limited to an appeal on a point of law.
- The county court, acting in its appellate role, will normally conduct a review of the decision of the RAP rather than a rehearing: CPR Part 52.11 (1). It will allow an appeal under CPR Part 53.11 (3) where the decision under appeal was (a) wrong or (b) unjust because of a serious or other procedural irregularity.
- The first general point that I wish to make arises out of the fact that an appeal to this court is a second appeal. In appeals of that kind the real question for this court is whether the intermediate appeal court (here the county court) was entitled to interfere with the decision of the first tier tribunal (here the RAP). In other words the focus of this appeal is whether the RAP were wrong: Procter & Gamble UK v HMRC [2009] EWCA Civ 407; [2009] STC 1990.
- The second general point is about appeals on fact. An appeal from the RAP is not limited to an appeal on a question of law, but that does not dilute the reluctance which an appeal court should have about overturning factual conclusions. Factual conclusions for this purpose include not only findings of primary fact but also evaluations of those facts, value judgments based on them, and the application of the facts to legal standards. The appeal court should not retry the case on the transcript. All this is contained in the recent judgment of the Supreme Court in McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477 as well as in Procter & Gamble UK at [9] (Jacob LJ), [60] (Toulson LJ) and Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642, [2003] 1 WLR 577 at [16] (Clarke LJ). Moreover where, as here, the appeal is an appeal from a specialist tribunal an appeal court's reluctance to intervene on questions of expertise should be all the greater: Procter & Gamble UK at [11] (Jacob LJ), [48] (Toulson LJ). This tribunal included a medically qualified member, and received advice from a specialist adviser.
- The first route to entry on the Specialist Register is by holding a CCT. One would naturally expect that alternative routes would be broadly equivalent. That this is so is, in my judgment, borne out by article 8 (2) of the 2010 Order, because the purpose for which the Registrar must consider a practitioner's specialist training and/or qualifications is to decide whether they are "equivalent to a CCT in the specialty in question".
- The next step, therefore, is to see what is required in order to qualify for the award of a CCT. In the case of a T& O surgeon the requirements are set out in the curriculum for Specialist Training in Trauma and Orthopaedics 2010, published by the Royal College of Surgeons. It is the syllabus leading towards the award of a CCT, which typically takes eight years. It is a lengthy and detailed technical document, which it is impractical to summarise. It must also be borne in mind that it is a practical document, written by medical practitioners; and one cannot expect it to exhibit the same verbal precision as a well-drawn contract, let alone an Act of Parliament. However, I must set out some extracts which are relevant to the appeal.
- A global assessment that is divided into four levels of overall global rating. The highest rating is the ability to perform the procedure (or selected elements) to the standard expected of a specialist in practice within the NHS (the level required for the CCT)." (Section 3-35)
- Section 8 contains the detail of the syllabus. It begins by saying that there are three components: applied clinical knowledge, applied clinical skills and professional and management. These components all "map back to Good Medical Practice." It goes on to say that these areas are interdependent, and illustrates the interdependency by means of a Venn diagram. Section 8-3 describes the middle years of training and continues:
- The applied clinical knowledge part of the syllabus includes a section devoted to paediatric orthopaedic surgery (as well as hand, knee, ankle and foot, hip, spine, trauma, shoulder and elbow). Paediatric surgery is not specifically mentioned in the section of the syllabus devoted to applied clinical skills.
- Section 10 of the 2010 curriculum explains the basis of assessment of Applied Clinical Skills for the CCT in T&O. The 14 key indicative procedures for the purpose of measuring clinical skills, to be assessed by reference to PBAs, include hand, knee, hip, back, leg and foot procedures. Section 8-3 of the syllabus says of these key procedures:
- Level 4 is described as "competent to manage without assistance including complications" and level 2 as "can manage with assistance". There is a further level designated "4s" which is a competence at level 4 needed only by those trainees selecting the area in question as a sub-specialist interest. The curriculum then details a large number of surgical procedures, which are far more extensive than the 14 key indicative procedures. In years 7 and 8 almost all require either level 4 or level 4s.
- As to clinical knowledge, section 10-9 of the curriculum states that "[t]he application of knowledge and its use in judgement will be assessed in the final T&O FRCS examination." Finally:
- It is clear from these extracts that a CCT is awarded to someone who has demonstrated practical competence across a broad range of T & O cases, even though he or she may have developed a sub-specialty (such as lower limb or hip surgery). The natural expectation is that a medical practitioner who goes down the "equivalence" route to registration would be expected to demonstrate the same range of practical skills.
- "Good Medical Practice" referred to in [17] above is a GMC publication. Among its overriding duties or principles are the following:
- The GMC publishes guidance for applicants for registration in the specialist register. The guidance explains that evidence will be evaluated in relation to four "Domains": (1) knowledge, skills and performance, (2) safety and quality, (3) communication, partnership and teamwork, and (4) maintaining trust. 75% is attributed to domain 1. It is common ground, however, that the GMC guidance to applicants cannot impose any greater or more stringent requirements than those imposed by the Order. It is therefore unnecessary to dwell on it further.
- Mr Nakhla applied for specialist registration under the equivalence route in January 2012. He submitted evidence relating to his medical practice in Egypt prior to 2005, and in the UK since he began work there in May 2006. On 17 September 2012 he was told that his application had been unsuccessful. He was sent a copy of the evaluation. Although the evaluators were satisfied that Mr Nakhla had demonstrated the relevant degree of knowledge, they were not satisfied that he had demonstrated the relevant depth and breadth of skills and experience. The essential point was that Mr Nakhla had substantial experience of lower limb reconstruction; but:
- In particular he had limited exposure to spines and paediatric orthopaedics; and his logbooks did not show substantial evidence of training in hand surgery or general trauma. The evaluators recommended that Mr Nakhla should either spend approximately 12 months in a post that would expose him to the areas in respect of which he had been unable to demonstrate equivalence to the 2010 CCT curriculum, namely general trauma, hand surgery, spinal surgery and paediatric orthopaedics, or provide evidence that his skills and experience in these areas were equivalent to the standards required by the 2010 curriculum.
- Mr Nakhla asked for a review. On 30 January 2013 he was told that his application was still unsuccessful. The reviewers said:
- They then commented on a number of "index PBAs" that had not been completed as required by the 2010 curriculum.
- Mr Nakhla then appealed to the RAP. The RAP heard evidence over three days, including evidence from Prof Frostick on behalf of the GMC and also from Mr Kamath, a specialty adviser. Prof Frostick had been one of the initial evaluators and also a member of the review evaluation panel. The RAP considered the evidence that had been placed before them. Mr Nakhla also called impressive evidence from a number of his professional colleagues at Basildon and a professor at Charing Cross Hospital, all of who supported his application for inclusion on the Specialist Register. They testified to his competence as a practising surgeon in his sub-specialist areas. He produced more evidence of work that he had carried out in Egypt before his move to the UK. But the RAP concluded that although he had demonstrated that he had carried out the procedures described in that material, there was no assessment of his competence in doing so. In considering the evidence of what Mr Nakhla had done since his arrival in the UK, the RAP, like the evaluators, took the view that there was little evidence of paediatric orthopaedics or spine work; and minimal hand work. Mr Kamath advised the RAP that Mr Nakhla had reached the skill equivalent of the CCT in hand, paediatric orthopaedics, spine and general trauma but that:
- Thus Mr Kamath was unable to say that Mr Nakhla had maintained the broad range of skills required by the 2010 curriculum. Prof Frostick took a view more unfavourable to Mr Nakhla. His view was that the Egypt experience was not sufficiently "triangulated" to enable him to come to a favourable conclusion on the hand, spine and paediatric orthopaedics. The RAP preferred the evidence of Prof Frostick. They did not consider the Egypt experience demonstrated a training equivalence to the 2010 curriculum. In any event that experience was at its latest in 2005. They concluded at paragraph (x):
- Accordingly his appeal was dismissed. In a nutshell, although Mr Nakhla was very good at what he did, what he did was too specialised to qualify him to have his name entered on the specialist register in T & O.
- The judge began by summarising the parties' submissions on the many grounds of appeal. She then turned to the legal question: what had to be shown under article 8 of the 2010 order in order to qualify for registration? I quote the relevant part of article 8 (2) again for convenience:
- She answered that question as follows:
- Based on her interpretation of article 8 (2) and the CCT the judge concluded at [228]:
- In the following paragraph the judge concluded that the RAP "required a training equivalent to the CCT as well as his specialist qualification. That was wrong as a matter of law." The judge was clearly of the view that the fact of Mr Nakhla's qualification as FRCS was sufficient to satisfy the requirements of article 8 (2). Thus at [194] and [195] she said that Mr Nakhla's specialist qualification was "one of the three ways of establishing equivalence", without regard to any additional training. At [197] she appeared to consider that training up to the time when Mr Nakhla gained his status as FRCS (T & O) would be relevant but not any training thereafter.
- One further point of interpretation cropped up later in the judge's judgment. The question was whether the requirement in article 8 (2) that training and/or qualifications "are" equivalent to a CCT meant that an applicant had to show that learned skills had been kept up to date. The judge answered that question in the negative at [220]:
- At [215] the judge identified what she saw as a further error of law, in relation to PBAs. She pointed out that there was no evidence to show what was required in this country to help trainees in their training before the introduction of PBAs. Nor did she know what records there were in England of individual operations before 2005. She continued:
- She identified another error of law at [227]. This related specifically to paediatric PBAs. The judge said that the 2010 syllabus contained no requirement for a paediatric PBA, and thus to the extent that the RAP took the absence of such a PBA into account it was wrong in law.
- Thus she allowed the appeal because of the errors of law that she had identified. In the final paragraph of her judgment at [243] she set out the principles that the RAP should follow on any resumed hearing:
- By paragraphs 1 and 2 of her order she remitted Mr Nakhla's application to a different RAP for redetermination of Mr Nakhla's appeal; and by paragraph 4 of her order directed them to apply the law as set out in paragraphs [180] to [185] of her judgment. The guidance that she set out at [243] (quoted above) was set out in paragraph 5 of her order, which directed the RAP to apply that guidance.
- The judge was, in my judgment, correct to say that the ultimate objective of the enquiry was to determine whether an applicant's qualifications or training or both were equivalent to a CCT. I think that she was also right to say that GMC guidance to applicants could not lawfully prescribe more onerous requirements than article 8 (2) itself. The judge was also right to say that in considering whether Mr Nakhla's qualification or training (or both) was equivalent to a CCT the Registrar, and hence the RAP, were required under article 8 (5) to "take account" of Mr Nakhla's experience or knowledge, wherever acquired.
- In the end, however, whether qualifications or training or both are equivalent to a CCT must, as it seems to me, depend on what the 2010 syllabus requires, since it is completion of that curriculum that leads to the award of a CCT. The judge concluded at [182] that having passed the examination for FRCS (Trauma and Orthopaedics) fulfilled the requirement for a specialist qualification. She thus assumed that equivalence could be "proved" by that qualification alone. But the Registrar is still required by article 8 (2) to decide whether the qualification or the training or a combination of the two is equivalent to a CCT. Suppose that in some foreign country an applicant studies for and receives a "Diploma in Trauma and Orthopaedic Surgery". Suppose that in order to obtain the Diploma the candidate must follow a curriculum which is identical to the 2010 curriculum in this country. In such a case, having examined that curriculum, the Registrar may well decide that a holder of the Diploma applying for inclusion on the Specialist Register has demonstrated equivalence with a CCT by qualification alone. But the judge's approach to the particular qualification that Mr Nakhla held assumes what is still to be decided: is the qualification FRCS (T & O) equivalent to a CCT? Had she asked herself that question, she should have answered it "no".
- In his powerful submissions Mr Nakhla said that the FRCS (T & O) was the finest surgical qualification in the world. Candidates from all over the world came to take it. The GMC has always acknowledged the quality of the FRCS (T & O) qualification. Prof Frostick said in evidence that it was a "very difficult exam" and that passing it was "a fantastic achievement." It therefore satisfied article 8 (2) (b). Mr Nakhla argued that under article 8 (5) the Registrar is required to take "specialist medical experience wherever obtained" into account and that the combination of his FRCS (T & O) qualification and his experience was sufficient. Since it was possible to qualify for registration either by virtue of a qualification or by virtue of training, in the case of a candidate who pursued the qualification route, training was irrelevant.
- I accept that the FRCS (T & O) is a "specialist qualification" within the meaning of article 8 (2) (b). I accept that in addition to his qualification of FRCS (T & O) his specialist medical experience also had to be taken into account. But that in itself does not answer the question: is the FRCS (T & O) qualification, taken together with Mr Nakhla's experience, equivalent to a CCT? By holding that the FRCS (T & O) was the specialist qualification the judge precluded any further enquiry. Nor do I accept that in the case of a person who chooses to rely on a qualification training is irrelevant. It is clear from the concluding part of article 8 (2) that the Registrar is required to consider the equivalence of the qualification, the training "or both when considered together". That points away from a rigid separation between qualification on the one hand and training on the other.
- The next point to make is that the judge did not have evidence of what is required in order to pass the FRCS (T & O) exam. So there was no evidential foundation for her conclusion that passing the FRCS (T & O) exam was a qualification equivalent to the CCT. Mr Nakhla relied heavily on the description of the FRCS (T & O) exam in section 8-3 of the curriculum which said that it would test:
- Thus, he argued, it could be seen from the curriculum itself that the exam was not merely a test of knowledge. It encompassed skills and attitudes as well. Moreover it tested skills, knowledge, and attitudes across the generality of the discipline, and, in addition, did so at the level of an NHS consultant. Since an applicant for a CESR was not applying for a CCT what was important was the outcome, rather than the means by which the outcome was achieved. If the skills, knowledge and attitudes of a T & O surgeon were tested by the FRCS (T & O) exam in the manner and to the level described, what more was needed to demonstrate competence at the level of an NHS consultant?
- The answer to that very pertinent question is, in my judgment, that the 2010 syllabus itself explains that passing the FRCS (T & O) exam is not the be-all and end-all.
- I repeat the essential parts of the 2010 curriculum:
- The interspecialty examination is the FRCS (T & O) examination, which Mr Nakhla has passed. But it is clear that this is only one part of what a successful applicant for a CCT needs to show. As section 6-1 explains the FRCS (T & O) qualification is part of the later years' assessment. Section 8-3 explains that the FRCS (T & O) together with the portfolio of evidence of workplace based competency permits the trainee to enter the final stages of training. The same point is repeated in section 11-1:
- An applicant must in addition have demonstrated a range of generic medical skills including team working and communication as well as evidence of competence in the general practice of orthopaedic and trauma surgery. I accept that the part of the curriculum on which Mr Nakhla relies gives some support to his case, but in my judgment it is outweighed by a consideration of the curriculum as a whole.
- I conclude therefore that the judge was wrong to hold in such bald terms that:
- The generic medical skills, according to the 2010 syllabus, will have included mastering all 14 key procedures to level 4. That level is to be reached in the final two years of training, and thus the candidate must demonstrate that in those years he is competent to manage them without assistance.
- In my judgment, therefore, the question for the RAP was whether Mr Nakhla, in addition to his formal qualification of FRCS (T & O), had demonstrated the range of generic medical skills equivalent to those that would have been required in order to obtain a CCT. I should stress at this point that the key phrase in article 8 (2) of the Order is that whatever a candidate relies on it should be "equivalent to a CCT".
- The word "equivalent" in this context does not, in my judgment, mean "identical". What it conveys is that the applicant's qualifications or training, or both, coupled with his medical knowledge and experience, are equal in value to the knowledge and skills that would have been recognised by the award of a CCT. Whether one knowledge and skill set has equal value to another is in itself a value judgment. Thus I do not consider that the RAP is required to reject an application merely because an applicant has not demonstrated that he has done and can still do everything that he would have been required to do in order to obtain a CCT. To that extent I accept Mr Nakhla's argument that what matters is the outcome, rather than how the outcome was achieved. The value judgment that the RAP must make would also accommodate the case of an experienced specialist who has left more general practice behind him. Otherwise one would be left with the paradoxical situation that the more experienced a practitioner was, in a discipline in which more experienced practitioners concentrate on sub-specialities, the less chance he had of successfully applying for inclusion on the Specialist Register. That said, it is essentially a question of medical judgment whether two different skill sets are equivalent; and in forming that judgment the Registrar (and the RAP) are entitled to place weight on the requirement of the curriculum that mastery of all 14 key procedures must be demonstrated.
- In deciding that Mr Nakhla was not required to demonstrate that he had maintained his competencies, the judge came to the opposite conclusion to that reached by HH Judge Gore QC in Dhannapuneni v The General Medical Council, decided in the Manchester County Court in a judgment given on 14 March 2014, a few weeks before the judge's decision in this case. Because I agree with HH Judge Gore's reasoning I will set it out:
- But there are three further points to make about this. At [183] the judge said of article 8 (5) that:
- In my judgment the judge was wrong in thinking that article 8 (5) had anything to do with the age of medical knowledge or experience. Article 8 (5) deals with experience or knowledge "wherever" acquired; not with experience or knowledge "whenever" acquired. Its concern is geographical rather than temporal. The second is that the statutory obligation to take account of such experience or knowledge does not prescribe the weight that is to be given to it. That must depend on all the circumstances, and is, in the end, a matter for the specialist judgment of the RAP. I can see no legal objection to the RAP giving more weight to recent experience than to historic experience. Third, since the primary function of the GMC is to protect, promote and maintain the health and safety of the public, it is entirely compatible with that function to require registered specialists to demonstrate broad up-to-date knowledge and experience. Medical techniques are in a state of constant development and it is natural to expect that a registered specialist has mastered the latest techniques. Accordingly in my judgment the judge was wrong to reject the GMC's case that an applicant should demonstrate that he has maintained skills.
- In fact Mr Nakhla did not argue that the maintenance of skills was not required. He said that if, for example, a candidate had trained as a surgeon but had then gone on a five year round the world cycling trip he should not be registered on the Specialist Register without demonstrating that his skills were up to date. His argument was that the maintenance of skills could be generically achieved, and that by safely and successfully practicing as a consultant specializing in lower limb procedures he had demonstrated that his skills were being maintained. Competence meant being capable of working effectively. It is impractical to require a surgeon to cover the full range of procedures; and provided that a surgeon maintains competence in his chosen area of interest, he has done enough.
- This was an attractive argument, but I cannot accept it. The fundamental defect in the argument is that it downplays the central requirement of the 2010 syllabus that a successful candidate for a CCT must demonstrate mastery of the 14 key procedures. The purpose of those key procedures, as the curriculum explains, is to demonstrate the full range of skills that a T & O surgeon needs to possess. The full range of skills is necessary because the successful holder of a CCT, and hence a newly appointed NHS consultant, must be able to deal with the majority of unselected trauma cases, rather than simply demonstrate competence in a sub-specialty. As I have said the acid test is equivalence. So there may be cases in which the Registrar is able to take the view that an applicant's skill set is equivalent to that of the holder of a CCT even though he cannot demonstrate continuing mastery of every single one of the 14 key procedures. That is a question of judgment or, as it is sometimes put, of fact and degree. I conclude, therefore, that the judge was wrong to hold that:
- I also consider that the judge was wrong in her treatment of PBAs. It is clear from the 2010 syllabus that in order to obtain a CCT an applicant must produce PBAs. Section 10-4 of the curriculum describes them as "the mainstay of assessment" beyond year 2. It must follow that in order to demonstrate equivalence with what is required for a CCT an applicant must demonstrate the equivalent of PBAs. The point of the PBA is to assess quality of performance in particular procedures: not quantity, which is assessed largely through the log book. For periods before PBAs existed, or in cases where the experience or training was obtained in countries which do not have the system of PBAs, PBAs themselves may not be necessary. But an equivalent is. Otherwise, the consequence of the judge's decision is that an applicant may successfully rely on historic experience with no evidence of how competently he performed in gaining that experience. On the judge's approach the Registrar (and the RAP) are not entitled to any form of quality control in relation to experience gained before 2005. That, to my mind, is hardly conducive to protecting, promoting or maintaining the health and safety of the public. Her conclusion also sits uncomfortably with her further conclusion that the GMC are entitled to PBAs for procedures carried out after 2005. I conclude therefore that the judge was wrong to hold that:
- The final legal error that the judge identified concerned what she perceived to be the GMC's (and the RAP's) reliance on the absence of PBAs for paediatric work. The underlying question raised under this head is not whether the GMC and the RAP were entitled to require PBAs as such, but whether they were entitled to require specific evidence of up to date skills in paediatric work. The foundation of the argument is that the 14 key procedures do not include any procedure which is specifically said to be paediatric. The only specific reference to paediatric work comes in a section of the curriculum concerned with applied clinical knowledge; and it is accepted by the GMC that the FRCS (T & O) exam is a test of knowledge across the generality of the discipline at the level of an NHS consultant.
- The first point to make about this is that the judge's conclusion about paediatric work is not a ground of appeal. So if the RAP did rely on the absence of evidence of continuing competence in paediatric work her decision to remit the appeal to the RAP should stand. However, Mr Maclean QC, appearing for the GMC, argued that although the reference to paediatric work was contained in the section of the curriculum concerned with applied clinical knowledge, the requirement to demonstrate continuing competence in the 14 key procedures must include competence in those procedures as applied to children. After all, he submitted, if a T & O surgeon is required to deal with the aftermath of a serious road traffic accident, the victims may well be children as well as adults. There is a difficulty with this argument. There is no evidence before us that the skills and procedures are materially different when applied to children as opposed to adults. If they are, then it is surprising that the 14 key procedures do not include any paediatric procedures. But if they are not, then to require evidence of up to date skills in paediatric work is unnecessary. Particularly since the judge's conclusion on this question is not specifically challenged in the Appellant's Notice, I would not disturb it.
- The RAP described the scope of the its enquiry at paragraph c of its decision:
- That, in my judgment, was the correct question. In relation to the evidence of Mr Nakhla's experience in Egypt the RAP said at paragraph k:
- This statement does not require an applicant to produce PBAs. PBAs are simply one type of workplace assessment. What the RAP was looking for was evidence of competence, rather than merely a recitation of what procedures Mr Nakhla had undertaken. Even in the historic context of what Mr Nakhla had done in Egypt I can see no fault with this. The RAP continued in paragraph l:
- In this paragraph the RAP is considering two types of evidence: first the log books; and second the references. The log books showed what Mr Nakhla had done in Egypt, but not how well he had done it. The references were pitched at a level of generality which did not enable the RAP to form a view about how well Mr Nakhla had performed any particular procedure. The RAP returned to the question of Mr Nakhla's experience in Egypt in paragraph u of their decision. They said:
- It is notable that Prof Frostick's view coincides with the RAP's own view expressed in paragraph l: namely that the Egyptian material provides no evidence of competence. Given the coincidence of evaluation of that evidence I do not find it surprising that the RAP preferred Prof Frostick's evidence on that point to that of the Consultant, Mr Kamath.
- Turning to Mr Nakhla's experience in the UK between May 2006 and July 2009 the RAP noted in paragraph m that there was "no evidence of paediatric orthopaedic work." In the following paragraph they dealt with his experience between May and November 2010, and again noted that there was "minimal paediatric orthopaedics"; and at paragraph u they noted the evidence of both their specialist adviser and Prof Frostick that there was insufficient evidence to "indicate that he has maintained his experience in child orthopaedics " This was one of three areas in which Mr Nakhla was found to be deficient, and formed part of the RAP's final conclusion in paragraph x. If, as I think, the RAP were in error in concentrating on paediatric orthopaedics (or at least in error in failing to explain why they regarded that deficiency as material given that paediatric orthopaedics were not the subject of any of the 14 key procedures) I consider that their determination cannot stand.
- The RAP concluded in paragraph w:
- In this paragraph the RAP is making two points. The first is that Mr Nakhla had not demonstrated a training experience equivalent to the 2010 curriculum. The second is that, even if he had, that training was all carried out before 2005. Failure on the first point alone would have been fatal to Mr Nakhla's application. The second point relates to the maintenance of skills and on that point both experts were agreed that Mr Nakhla had not maintained his experience in spine, child orthopaedics and hand. Since, for the reasons I have given, I consider that (with the exception of paediatric orthopaedics) the RAP were entitled to look for evidence that Mr Nakhla had maintained his competencies, there is no error in this reasoning. Moreover I consider that the RAP are entitled to place greater weight on recent experience than more historic experience.
- The judge said at [207] that she was surprised that the RAP attached such weight to Prof Frostick's evidence when "he was careless in writing his witness statement and his detailed knowledge was deficient" in ways that the judge identified. She went on to say:
- I do not consider that the judge was justified in making this criticism. First, it is for the primary fact finding tribunal to evaluate the evidence and, especially when the primary tribunal has seen the witnesses, an appeal court should be very slow to intervene. Second, there is no reason to suppose that the RAP overlooked deficiencies in Prof Frostick's evidence. A witness's evidence may well be deficient in many respects yet be accurate on one or more critical points. Third, the evidence that Prof Frostick gave was expert evidence evaluated by an expert tribunal, which should give an appeal court even more cause to refrain from interfering. Fourth, the crucial point on which the RAP accepted Prof Frostick's evidence was, in effect, corroborative of the view that they themselves had independently formed about the quality of the evidence of Mr Nakhla's Egypt experience. Overall I am concerned that what the judge appears to have done is to retry the case on the papers. That is not what an appeal court should do.
- Mr Nakhla also applied for permission to cross-appeal. We refused him permission to appeal against the judge's refusal to award him damages; but allowed him to argue in favour of an order directing the Registrar to enter him on the Specialist Register rather than remitting the matter to the RAP. I do not consider that this is a case in which the court can be confident that there is only one realistic outcome. Mr Nakhla says that he has complied with the informal recommendation of the RAP and he now has a batch of PBAs which demonstrate a broader range of skills than those which were placed before the RAP. It will be for the RAP to decide whether, in the light of our judgments and the new material that Mr Nakhla has presented, he has demonstrated the "equivalent" of a CCT.
- In my judgment, with the exception of the point about paediatric orthopaedics, the legal errors that the judge identified were not errors at all. Subject to that point the RAP correctly directed themselves in law. Their evaluation of the evidence before them was one which an appeal court should respect; and in particular they were entitled to accept the evidence of Prof Frostick, which coincided with their own independent evaluation of the evidence produced by Mr Nakhla. I do, however, have a concern that they may have adopted too mechanistic an approach to testing the "equivalence" of Mr Nakhla's knowledge and skills when measured against the requirements of the CCT curriculum. Moreover, their apparent requirement that Mr Nakhla should produce contemporaneous evidence of assessment of work done in Egypt before May 2006 (which is practically impossible at this remove) displays a rigidity of approach which, if regarded as a fatal defect in his application, would come close to failing to resolve the paradox, mentioned in paragraph [54] above, that the more experienced (and indeed distinguished) an applicant from abroad is, the more difficult will it be for him to obtain a CESR.
- I would allow the appeal in part. I would set aside paragraphs 4 and 5 of the judge's order, which contains the legal guidance that she laid down. I would not set aside paragraph 1 of her order which remitted Mr Nakhla's appeal to the RAP to enable them to re-determine Mr Nakhla's application in the light of the more recent PBAs he says he has obtained, and on the correct understanding of any necessary paediatric experience. I see no reason why the remitted appeal should not be determined by the same panel as before, if that is convenient and they are available. Nor do I see any difficulty with it being determined by a different panel. I do not agree with the judge that it must be determined by a different panel. Accordingly, I would set aside paragraph 2 of her order as well.
- Finally, I would like to congratulate Mr Nakhla on the attractive, persuasive and measured way in which he presented his case; and his undoubted mastery of the papers. His presentation would have done credit to an experienced member of the Bar. The transcript of the hearing before the RAP shows that he has formidable cross-examination skills as well. If he ever gives up surgery, a promising alternative career lies ahead of him.
- I agree.
- I agree with Lewison LJ and the form of order he proposes. I would only desire to echo the sentiments in his last paragraph. It was a pleasure to listen to submissions of such high quality.
Lord Justice Lewison:
Introduction
The legal framework
"award a certificate of completion of training (CCT) to any person who applies to the General Council for that purpose if
(a) that person is a registered medical practitioner;
(b) the Registrar is satisfied that that person has been appointed to, and has satisfactorily completed, a course of training leading to the award of a CCT; and
(c) that course of training has been approved by the General Council under section 34I(1)(a)."
"(1) The General Council shall keep a register of specialist medical practitioners (known as "the Specialist Register").
(2) The Specialist Register shall, subject to subsections (4) and (5), contain the names of
(a) registered medical practitioners who hold a CCT in a recognised specialty;
(b) ; and
(c) registered medical practitioners falling within such other categories as the Privy Council may by order specify.
(3)
(4) A person falling within any of paragraphs (a) to (c) of subsection (2) shall only be included in the Specialist Register if they have applied to the Registrar for the purpose and have paid any fee specified in regulations under section 34O."
"(1) Persons are eligible specialists for the purposes of article 7(1)(a) if they are exempt persons and hold a recognised specialist qualification granted outside the United Kingdom as specified in article 10.
(2) Subject to paragraph (4), a person ("S") is an eligible specialist for the purposes of article 7(1)(a) if S does not fall within paragraph (1) but has
(a) undertaken specialist training; or
(b) been awarded specialist qualifications,
in a recognised specialty and satisfies the Registrar that that specialist training is, or those qualifications are, or both when considered together are, equivalent to a CCT in the specialty in question.
(3)
(4)
(5) If S
(a)
(b) has acquired specialist medical experience or knowledge, wherever obtained,
the Registrar shall take account of that experience or knowledge, when determining the adequacy of the training or qualifications under paragraph (2) ."
"(8) In disposing of an appeal under this paragraph, a Registration Appeals Panel may determine to
(a) dismiss the appeal;
(b) allow the appeal and quash the decision appealed against;
(c) substitute for the decision appealed against any other decision which could have been made by the person making the decision;
(d) remit the case to the person making the decision to dispose of in accordance with the directions of the Registration Appeals Panel, "
"(1) Where
(a) a Registration Appeals Panel determines an appeal under paragraph 4 above; and
(b) the Panel's determination is any determination other than a determination under paragraph 4(8)(b) above to allow the appeal and quash the decision appealed against,
the person concerned may, before the end of the period of 28 days beginning with the date on which notice of the determination was given to him under paragraph 4(9), appeal against the determination to the [county] court."
"substitute for the determination appealed against any other determination which could have been made by the [RAP]"
Appeals to the courts
The question to be determined
"The acquisition of operating experience is an important factor in surgical training and so any curriculum to be used in the workplace should be competence focused." (Section 2-2)
"PBAs [Procedure-Based Assessments] assess trainees' technical, operative and professional skills in a range of specialty procedures or parts of procedures during routine surgical practice up to the level of CCT. PBAs provide a framework to assess practice and facilitate feedback in order to direct learning.
The assessment tool uses two principal components
"The award of a CCT occurs at the completion of training once the Trainee has demonstrated a range of generic medical skills including team working and communication as well as evidence of competence in the general practice of orthopaedic and trauma surgery and the successful completion of the interspecialty examination. By the time they acquire the CCT they may already have developed a special interest in one of the above named areas." (Section 6-1)
"Part of the later years assessment will include the successful completion of the intercollegiate specialty examination." (Section 6-1)
"Before the award of the CCT the trainee will need to demonstrate in a formal summative assessment of the curriculum the applied knowledge, skills, attitudes and judgements of an Orthopaedic surgeon practising independently in the generality of the discipline." (Section 6-2)
"It is anticipated that in order to access the final phases of training [years 6 to 8] it would be necessary to be able to demonstrate that the applicant had a level of knowledge sufficient to complete the [FRCS] Exam in Trauma and Orthopaedics within 12 months of entering at this level."
"A newly appointed consultant in T & O with CCT should be able to accept responsibility for the reception and initial management of the majority of unselected trauma cases and act as the primary consultant for the small number of orthopaedic emergencies which may occur. [The holder of a CCT] would be expected to assess emergencies as they arise, resuscitate and definitively treat the majority, referring on some of the more specialised cases as described above." (Section 6-3)
"Towards the end of this period, or at the start of the next, a public demonstration of the acquisition of the skills, knowledge, and attitudes expected of a T & O surgeon practising in the generality of the discipline at the level of an NHS consultant must take place in the form of a Fellowship examination. Together with a portfolio of evidence of workplace based competency this will permit the trainee to enter the final stages described below."
"It is essential to realise that these key procedures do not encompass the whole practice of the discipline but do indicate the whole range of skills to be acquired by a competent T & O surgeon. Assessment (PBA) in the key procedures gives evidence as to the quality of a trainee's performance, their overall competence is assessed from this evidence set in the context of their entire logbook (quantity) of procedures."
"All key procedures (PBA) must be mastered to level 4 and the remainder at a minimum of level 2, except in rarer and very specialized areas when this will simply not be practicably possible."
"At the end of training a CCT will be awarded when the trainee has satisfied [the Postgraduate Medical Education Training Board] that they have been trained in the generality of Orthopaedics and Trauma, assessed as having completed the competencies laid out in the Orthopaedic and Trauma curriculum and having the attitudes, skills and judgement of a surgeon capable of independent practice.
The recommendation for the award of CCT will take into consideration that:
1. The syllabus is for the generality of Trauma and Orthopaedics and this will have been assessed in the [FRCS] exam which trainees must have completed by the end of their training. This exam forms part of the trainee's portfolio which also includes work place based assessments and the evidence of previous learning agreements and [Annual Review of Competence Progression/Review in Training Assessments]." (section 11-1)
"You must keep your professional knowledge and skills up to date" and
"You must regularly take part in activities that maintain and develop your competence and performance."
The GMC's guidance for applicants
Mr Nakhla's case
"The evaluators were not satisfied that Dr Nakhla's logbooks and consolidation sheets display that his skills and experience cover the generality of the 2010 Trauma and Orthopaedic surgery CCT curriculum."
" Not only must an applicant show that they gained the competencies, they also need to show that they are currently maintaining those competencies. In looking to see that an applicant gained the competencies the GMC will look at an applicant's whole career, not only the last 8 or indeed 5 years.
However, an applicant also has to show that they are maintaining these competencies to the standard of the curriculum. The GMC will look at an applicant's more recent practice to ensure that the breadth of competencies is maintained. It is worth bearing in mind that the standard is that of the 2010 Trauma and Orthopaedic surgery CCT curriculum, not that of consultant colleagues whose practice may have become focussed on certain areas.
Structured reports or references on their own do not provide strong enough evidence; primary evidence is also required.
In his letter on page 64 Mr Nakhla comments on his experience in general trauma [in Cairo University] He also uses these pages to demonstrate his experience in Spinal Surgery, Paediatric Orthopaedic surgery and Hand. He undertook this work between 2002 and 2005. While this may be evidence to show that he gained competencies, it is too long ago to show that he is maintaining them as described above.
He also comments 'Refer to pages 269-271 for General Trauma and Hand experience in Charing Cross Hospital'. This experience was between 20/5/2006 2/7/2009. There is not enough recent evidence in these alone to show that he is maintaining competencies across the board.
The logbook data presented for the period 1st May 2012 to 1st December 2012 are mostly hip and knee operations with a small number of trauma cases. As such again do not show the necessary breadth required to meet the standards of the 2010 CCT curriculum in Trauma & Orthopaedic surgery."
" there is insufficient evidence to indicate that he has maintained his experience on spine, child orthopaedics and hand. General trauma skills are maintained."
"Naturally the Appellant would have acquired some skills during his Egypt training. The curriculum requires him to demonstrate those skills have been maintained. The reality is that since arriving in the UK in 2005 he has focussed on lower limb work. He is plainly entirely competent at the work he does. He is well thought of by colleagues and patients and we have heard and read a good deal of evidence of his competence. However he has failed to produce sufficient evidence (and the burden is on him) that he has maintained all the skills necessary to demonstrate, either on the date of the application, review or for this appeal, the breadth and depth of competence in hand, spine or paediatric orthopaedics equivalent to a trainee applying for a CCT. His contention that specialist units treat these conditions and his experience enables him to refer appropriately ignores the requirements of the curriculum which requires competence across all areas of Trauma and Orthopaedic Surgery. He must demonstrate that at more than a basic level he could treat any patient with trauma and orthopaedic conditions. That must be evidenced by robust and objectively verifiable evidence of the type lacking in this case."
The judge's judgment
" a person ("S") is an eligible specialist if S has
(a) undertaken specialist training; or
(b) been awarded specialist qualifications,
in a recognised specialty and satisfies the Registrar that that specialist training is, or those qualifications are, or both when considered together are, equivalent to a CCT in the specialty in question."
"180. Article 8(2) makes an applicant eligible for the Specialist Register if she has either undertaken specialist training or been awarded specialist qualifications in a recognised specialty and satisfied the Registrar that either the qualifications or the training or both when considered together are equivalent to a CCT in the specialty.
181. Article 8(5) requires the Registrar to take into account specialist medical experience or knowledge wherever obtained when determining the adequacy of the training or of the qualifications.
182. The italics are mine in an effort to distinguish the three different ways in which an applicant can prove equivalence. They are by her qualifications or by her training or by a combination of the two. She does not have to demonstrate equivalence by reference to training if she relies on qualifications or by reference to qualifications if she relies on training.
183. The effect of (5) is that all acquired medical experience or knowledge is to be taken into account. It is not limited by geography or age. It is to be taken into account whether the Panel is considering the equivalence of qualifications or the equivalence of training or the equivalence of the combination of the two.
184. If and in so far as any GMC guidance or requirements depart from the statutory provisions of the 2010 curriculum for the CCT then they cannot bind the [RAP] or the court . If the [RAP] treated a different provision in the CESR as binding and so departed from the actual requirements of the CCT curriculum in considering the issue of equivalence then they would have committed an error of law."
"Had the [RAP] been correctly applying the law as set out in Article 8 (2) they would have realised that the FRCS (Trauma and Orthopaedics) was a key to their consideration of the case. That is because in itself it fulfils the requirement in article 8 (2) for the specialist qualification so all they needed to look at in addition to that was his experience pursuant to Article 8 (5) and that they did not need to look at his specialist training. If their decision was based on their failure to recognise that as the legal position then it would be wrong."
"As a matter of legal interpretation I reject [the] argument that the wording of Article 8 (2) requires the applicant to show he maintained the same skills up to the time when his application ws being completed. The CCT wording is "It would be necessary to have completed all the modular competencies equivalent to completing ST6". It does not require maintenance of those "competencies". It requires evidence that they have been completed in the past before the specialist stage of training."
"Thus there is no evidence that the [RAP] was entitled to demand such detailed information from Egypt prior to 2005 to demonstrate equivalence with the CCT in England. So I must hold that they were wrong to do so and that in so far as their decision turned on the absence of such evidence it is wrong as a matter of law."
"The FRCS (Trauma and Orthopaedics) is the Article 8 (2) specialist qualification. The GMC is not entitled to require PBAs or their equivalent for any period prior to their introduction in this country in 2005. There being no evidence as to what was required in this country to monitor training prior to the introduction of PBAs, the GMC is not entitled to require PBAs or equivalent evidence in relation to any period before 2005. The GMC is entitled to require PBAs or equivalent evidence from 2005 in relation to each of the 14 key procedures set out in the 2010 curriculum. There is no legal requirement in the curriculum or in the statute for maintenance of skills to be evidenced. As it can take anything up to 11 years to complete the CCT evidence of competence of that age is not too old to be taken into account. There is no legal requirement for a PBA or its equivalent in paediatric orthopaedics. The 2012 curriculum is irrelevant to this application. The involvement of Professor Frostick in the two evaluations is not unfair nor is there evidence of bias in the unavailability of statistics as to applications he has allowed nor in the statistics of appeals allowed."
Article 8 (2) and the 2010 curriculum
"the skills, knowledge, and attitudes expected of a T & O surgeon practising in the generality of the discipline at the level of an NHS consultant"
"The award of a CCT occurs at the completion of training once the Trainee has demonstrated a range of generic medical skills including team working and communication as well as evidence of competence in the general practice of orthopaedic and trauma surgery and the successful completion of the interspecialty examination. By the time they acquire the CCT they may already have developed a special interest in one of the above named areas." (Emphasis added)
"This exam forms part of the trainee's portfolio which also includes work place based assessments" (Emphasis added)
"The FRCS (Trauma and Orthopaedics) is the Article 8 (2) specialist qualification."
"What is material is that both routes are subject to the additional requirement, hence the word "and" in the article; and the additional requirement is that the applicant satisfies the Registrar that the training and the qualifications, and I quote and emphasise, "are" equivalent to a CCT in the specialty. For two reasons I have come to the conclusion that experience and maintenance thereof are relevant to that additional requirement and, therefore that the Panel properly directed itself. First, in Article 8 (2) the relevant words as I have indicated is "are". Therefore, the training and qualifications, whenever obtained must now, present tense, be equivalent to a CCT in the specialty. That present equivalence it seems to me can only be judged against experience and maintenance thereof. Secondly, Article 8 (5) directs the Registrar when determining the adequacy of training and experience for the purposes of Article 8 (2) to take account of experience or knowledge and indeed in Article 8 (5) (b) it adds wherever obtained. These provisions again, in my judgment, demand that the Registrar and therefore the Panel do what the Panel did in this case and therefore look beyond the training and qualifications and the experience and its maintenance."
"The effect of (5) is that all acquired medical experience or knowledge is to be taken into account. It is not limited by geography or age." (Emphasis added)
"There is no legal requirement in the curriculum or in the statute for maintenance of skills to be evidenced."
"The GMC is not entitled to require PBAs or their equivalent for any period prior to their introduction in this country in 2005. There being no evidence as to what was required in this country to monitor training prior to the introduction of PBAs, the GMC is not entitled to require PBAs or equivalent evidence in relation to any period before 2005."
The RAP's decision
"To establish equivalence to a CCT an applicant must demonstrate that they have the necessary knowledge, skills and experience equivalent to the standards required for a CCT as outlined in the specialty curriculum in force at the date of the application."
"k. Specialty Specific Guidance sets out briefly the standards to be met and suggested evidence to be provided by an applicant for CESR. The quality and presentation of evidence is important. It emphasises that it is not sufficient to show what an applicant had achieved but also how they have performed. Testimonials and structured reports, without more, do not provide primary evidence and need to be triangulated with other substantive evidence such as work place based assessments a type of which is PBAs."
"Against that background we have considered the logbooks and consolidation reports which cover the period of practice in Egypt. Additionally we have in mind the favourable references and that the log books disclose a large number of varied procedures. Work recorded in the log book is authenticated and is probably more extensive than that required of a UK trainee but is not supported by any assessment of competence and as such is no more than evidence that the procedure was undertaken. The references are in general terms and non case specific and as such not evidence of competence of the type required by the 2010 curriculum."
"The Panel has had the advantage of advice from a Consultant in the T & O specialty. That advice is, including the Egypt experience, the Appellant reached the skill equivalent with the CCT in hand, paediatric orthopaedics, spine and general trauma but there is insufficient evidence to show indicate that he has maintained his experience in spine, child orthopaedics and hand. General trauma experience is maintained. That advice differs from the view of Professor Frostick who does not consider the Egypt experience as sufficiently triangulated to enable him to come to a favourable conclusion on the hand, spine and paediatric orthopaedics. Without evidence of outcomes, ages and sex of patient, level of supervision of the Egypt experience is no more than reciting numbers. The evidence in the form provided is insufficient to be given meaningful weight in assessing training/competence in the 2010 curriculum."
"We do not consider that the Egypt experience, insufficiently triangulated as it is, demonstrates a training equivalence to the 2010 curriculum. In any event that experience is at its latest in 2005."
"I hold that the fact that the [RAP] attached such weight to his evidence establishes unequivocally that they failed properly to analyse his evidence and were wrong to attach such weight to it."
The cross-appeal
Result
Lord Justice Burnett:
Lord Justice Longmore: