United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	JAMES GOUDIE QC and BRIAN NAPIER QC Instructed By: Ms M A Davis Messrs Field Fisher Waterhouse Solicitors 35 Vine Street London EC3N 2AA
For the Respondent	ANDREW HENSHAW (of Counsel) Instructed By: Ms R Bastin The Disability Law Service 39-45 Cavell Street London E1 2BP


 


MR JUSTICE HOLLAND:

Introduction

1. This is an appeal from a decision of an Employment Tribunal sitting at London Central, which decision together with Extended Reasons was sent to the parties on the 1^st December 2000. The issue was of a preliminary nature: is the Respondent to the complaint, the General Medical Council ("GMC"), a trade organisation within the meaning of Sections 13 and 68 of the Disability Discrimination Act 1995?

General Medical Council

2. It is helpful at the outset to deploy the statutory provisions that are relevant to this body and to the issues raised in this matter. With such provisions identified, the issues can readily be defined.
3. The Council was and remains a creature of statute. It originates as a solution devised by Parliament to resolve a problem specified in the preamble to the Medical Act 1858: "Whereas it is expedient that persons requiring medical aid should be able to distinguish qualified from unqualified practitioners …" By Section 3 it was ordained that the Council should be established with a membership carefully defined by Section 4 to ensure a preponderance of academically qualified practitioners with a modest leavening of six lay persons "to be nominated by Her Majesty with the advice of the Privy Council." The remaining provisions served to impose upon the Council the duty of compiling and maintaining a public register of medical practitioners deemed to be qualified.
4. The successor Act currently in force is the Medical Act 1983. The relevant provisions are:

a. Section 1(1) There shall continue to be a body corporate known as the General Medical Council (in this Act referred to as "the General Council") having functions assigned to them by this Act.

(2). The General Council shall be constituted as provided by Her Majesty by Order in Council under this section subject to the provisions of Part 1 of Schedule 1 to this Act.

(3). There shall continue to be four committees of the General Council known as the Education Committee, the Preliminary Proceedings Committee, the Professional Conduct Committee and the Health Committee (in this Act referred to as "the statutory committees") constituted in accordance with Part III of Schedule 1 to this Act and having the functions assigned to them by this Act.

Section 2 provides for the continuing keeping by the Registrar of the Council of registers of medical practitioners with their qualifications.

Section 5(1): The Education Committee shall have the general function of promoting high standards of medical education.

(2). For the purposes of discharging that function the Education Committee shall-

(a) determine the extent of the knowledge and skill which is to be required for the granting of primary United Kingdom qualifications and secure that the instruction given in universities in the United Kingdom to persons studying for such qualifications is sufficient to equip them with the knowledge and skill of that extent;

(b) determine the standard of proficiency which is to be required from candidates at qualifying examinations and secure the maintenance of that standard; and

(c) determine patterns of experience which may be recognised as suitable for giving to those engaging in such employment as is mentioned in section 10(2) below general clinical training for the purposes of the practice of their profession.

(3). The determinations of the Education Committee under subsection (2) above shall be embodied in recommendations which may be directed to all or any of the universities or other bodies concerned with medical education.

Section 6. empowers the Education Committee to call for information from Universities that grant qualifications information as to the course and examinations, "and generally the requisites for obtaining the qualification." It further empowers the appointment and attendance of inspectors.

Section 7. empowers the Education Committee, "subject to any directions which the Privy Council may deem it expedient to give" to appoint visitors of medical schools.

Section 8. empowers the Education Committee to add further qualifying examinations.

Section 9(1). If at any time it appears to the Education Committee that the course of study and examinations to be gone through in order to obtain a primary United Kingdom qualification are not such as to equip persons going through the course and examinations with the prescribed knowledge and skill, the Committee may make representations to that effect to the Privy Council.

(2). On any representations under subsection (1) above the Privy Council may, if they see fit, order that a qualification granted, after such time as maybe specified in the order, in pursuance of the course of study and examinations to which the order relates shall not be a qualification registrable under section 16 below.

Section 10(2). A person must, after passing a qualifying examination, have been engaged for the prescribed period of employment in a resident medical capacity in one or more approved hospitals or approved institutions and have obtained a certificate under this section.

(4). Where, on an application in that behalf, a person satisfies the General Council that by the reason of lasting physical disability he will be or has been prevented from embarking on, or completing, any period of experience of the practice of a branch of medicine prescribed for the purposes of this section the Council may if they think fit direct that the applicant may for the purposes of this section count in lieu thereof experience of the practice of some other prescribed branch of medicine (whether or not one in the practice of which he has already had experience for those purposes) acquired in the same manner and for the same period, or, as the case may be, for so much of that period as will have remained uncompleted.

Section 50. provides for the exercise of powers by the Privy Council in the event of default by the Education Committee.

Schedule 1. provides that the Council shall consist of-

(a) Elected members, viz fully registered practitioners elected by their peer group;

(b) Appointed members, viz fully registered practitioners chosen by the Universities and other bodies as designated by Order in Council; and

(c) Nominated members, viz persons, mainly lay, nominated by the Crown on the advice of the Privy Council.

5. In the course of submissions we were told (and we accept) that the GMC is registered as a charity. We were further told (and we accept) that every medical practitioner registered by it has to pay an annual fee for renewal of registration.

The Facts

6. The issue before the Employment Tribunal being of a preliminary nature fact finding understandably amounted to a recital of the material contentions as advanced by and on behalf of the Applicant, now the Respondent. For present purposes the following is germane. In 1992 Miss Heidi Cox started studies with a view to a medical qualification at St. George's Hospital Medical School. Tragically such were terminated by a serious accident. The resultant injuries included one affecting her spinal cord so that she became and will remain a paraplegic – presumably having to function from a wheelchair.
7. Thereafter she amply demonstrated her character and intellect by reading for and obtaining an MSc at City University and a B.A. (Hons) at Reading University. By 1999 she decided to attempt a return to, and completion of her medical studies with a view to practising as a pathologist. To that end she was extensively interviewed for admission to Oxford University. Confronting the problems perceived to be posed by the disability of the Respondent, Dr. Susan Burge, Director of Clinical Studies in a letter of the 14^th February 2000 sought rulings from the GMC. The letter set out the history, noted the Respondent's proven academic ability and indicated that "she appeared generally to be a good candidate for medicine." The letter then continues: "Our concern, of course, lies in the extent to which her disability will restrict her ability to follow the full training that we would normally offer to clinical students. Furthermore if she is able to qualify, there will (be) certain aspects of pre-registration training that she could not pursue. In particular, she will never be able to undertake some of the procedures listed by the GMC, such as, for example, basic cardio-pulmonary resuscitation and the control of haemorrhages. On the other hand, there will be many procedures that she would be able to carry out from a wheelchair and, in the long term, a wheelchair-bound doctor may have a lot to offer to profession." The next ensuing passage similarly merits citation:

"I have spoken informally to Helen Burke about this case, I am aware that the GMC has no official role in the matter of admission of students to medical courses. However, given the investment of time and financial resources that the applicant is contemplating in order to qualify, and given the limited quota of medical places available to us, it would be wrong of us to consider her application further without a clear indication from the GMC that the training she could undertake and the range of skills that she could acquire would ultimately be acceptable for registration.

To address first the issue of the acceptability of a student being allowed to by-pass some parts of the normal clinical course, it has been put to us that there is no provision for this within the terms of the Medical Act. That is not, however, necessarily the same as saying that to make such a special arrangement is clearly disallowed. I understand that a new Human Rights Act will come into force in the autumn, and that this will likely emphasise the need for widening access to employment. I should be grateful for a clear ruling as to whether the GMC is able and would be willing to agree to the tailoring of an undergraduate's clinical training to suit his or her disability. Naturally, what is most pressing for us and for the candidate, is whether the GMC could consider such a request in the case of a paraplegic. Naturally, we could argue that to make such a special allowance (for instance, to excuse a paraplegic student from learning resuscitation) should not be seen be any way as setting a precedent and defining the exception for an able-bodied student.

The second major issue, on which we feel we should await a clear ruling from you, is whether the GMC would be prepared in due course to approve a modified pre-registration year for a student who was paraplegic at the time of her admission to the medical course. This may be a more straightforward matter, where there may be some related (albeit not identical) precedents."

8. A response came by way of a letter of the 15^th March 2000 from Professor Graeme Catto, the Chairman of the Education Committee. The material passage reads:

"When graduating a medical student, the universities are in effect certifying to the GMC that the person concerned has completed the requisite training laid down by the Committee in its entirety and is fit for purpose as a pre-registration house officer. This must be so because of the entitlement to provisional registration with the GMC which flows from graduation with a primary medical degree.

The Committee, in our view, cannot in law agree an alternative curriculum which covers a lesser order of knowledge and skill in the case of medical students who are known from the outset to be unable to complete a full graduate course consistent with the GMC's guidance. Having said that, we have very occasionally exercised the power given to us by Section 10(4) of the Medical Act. This has involved us in agreeing to an alternative pattern of experience during the pre-registration year for a person who, while a senior medical student, has suffered an illness or injury of such gravity that although they could still undertake an appropriately designed medical house officer post, they could not for example cope with the demands of a surgical post. It is difficult to generalise but we might see cases involving paraplegia once or twice in a decade. The last of which I am aware came before us in 1994.

I am sorry that I am unable to send a more encouraging response, but I hope you will understand that our overriding concern has to be protection of patients."

This response was reiterated in a further letter from Professor Catto, that of the 14^th July 2000 addressed to the Respondent herself. He then pointed out that student selection was a matter for the Universities and not for the GMC. If she were to be admitted to a University and thereafter successfully completed the prescribed course then there would be the scope for exercise of discretion with respect to pre-registration year requirements. In the event Oxford University decided that its course could not accommodate the Respondent's disability without some modification that must give rise to a shortfall as against GMC requirements. The Respondent's application was therefore refused by the University.

The Complaint

9. By an ET1 of the 21^st June 2000 the Respondent complains that the GMC were guilty of disability discrimination. The case was advanced by reference to the Disability Discrimination Act 1995 with particular reference to:

"Section 13(1). It is unlawful for a trade organisation to discriminate against a disabled person-

(a) in the terms on which it is prepared to admit him to membership of the organisation; or

(b) by refusing to accept, or deliberately not accepting his application for membership

(4) In this section 'trade organisation' means an organisation of workers, an organisation of employers or any other organisation whose members carry on a particular profession for the purposes of which the organisation exists."

10. The Respondent's case as submitted to the Employment Tribunal had these elements:

a. The GMC is an organisation whose members carry on a particular profession, viz the practice of medicine, for the purposes of which the organisation exists;

b. The GMC is therefore a trade organisation within the meaning of Section 13; and

c. By way of its conduct as aforesaid it was discriminating against the Respondent as a disabled person by refusing so to exercise its supervisory powers as to accommodate her disability, thereby preventing her qualifying as a medical practitioner so, in turn, to prevent from ever becoming a member of the GMC.

The Employment Tribunal

11. This Tribunal focussed upon two issues: was the GMC a 'trade organisation' as so defined? If so, was it arguable that by its conduct it was forestalling the Respondent's membership so as to discriminate against her on ground of disability?
12. With respect to the first issue, the Tribunal in paragraph 12 of the Extended Reasons apparently found that "the GMC was primarily a regulatory body which existed for the protection of the public" and contrasted the Law Society and the British Medical Association. We write 'apparently': in paragraph 14 there comes, without explanation, a ruling that the GMC is a 'trade organisation' within the meaning of Section 13(4).
13. With respect to the second issue, a ruling came by way of paragraph 13:

"Having given careful consideration to the evidence and the helpful arguments presented by the representations of both parties the Tribunal rejects the narrow construction of the word "Member" which was urged upon us by Mr. Napier on the GMC's behalf. The Tribunal finds that "Member" is not limited to the 104 members of the GMC Council. We find that membership of the GMC can exist at different levels. The 104 members of the GMC Council are members of the GMC. The doctors with full and provisional registration are also members of the GMC. They pay subscriptions to the GMC and in return for which GMC does, contrary to the submissions made by the GMC, look after the interests of the medical profession albeit not as a trade union. In that sense, membership of the GMC is no different from that of the Law Society where the Law Society has members on its Council and subscribing members – the ordinary members of the profession. If Mr. Napier is right, the ordinary solicitor member of the Law Society would be excluded from being described as a "member" of the Law Society. The Applicant, as a potential future member of the GMC, i.e. a future candidate for provisional and full registration, does come within the definition in section 13(1)(a) of the 1995 Act bearing in mind the fact that the contents of the medical courses have to be approved by the GMC's Education Committee."

14. In the result the decision of the Tribunal upon this preliminary issue was expressed as follows:

"The unanimous decision of the Tribunal is that the Respondent is a "trade organisation" within the meaning of section 13 and 68 of the Disability Discrimination Act 1995 ("the 1995 Act") and the Tribunal has jurisdiction to consider the Applicant's complaint under the provisions of the 1995 Act; and, accordingly, the Applicant's said complaint will proceed to a full merits hearing."

This Tribunal

15. The GMC appeals against this decision; the Respondent seeks to uphold it. We received excellent oral submissions, respectively founded upon comprehensive skeleton arguments, from Mr. Goudie QC for the Appellants and Mr. Henshaw for the Respondent. We think that without any disrespect we can forego recital of their respective arguments and proceed directly to our ruling in the course of which the substance of their submissions will become readily apparent.

Judgment

16. Is the GMC a trade organisation within the meaning of Section 13? In our judgment it is beyond argument that that at its inception the purpose for which this organisation existed was the protection of the public, and particularly those members of such that had to consult a medical practitioner. The preamble to the 1858 Act said as much and it would be surprising if Parliament of its own volition made an enactment for the purposes of the medical profession. Has the position since changed? We think not. The functions of the GMC are to be those assigned by the Medical Act 1983 (see Section 1(1)), which functions, as emerging from the ensuing sections, are in great substance directly or indirectly concerned with setting and attaining the professional standards that serve to protect the public. We readily accept Mr. Henshaw's submission that the activities of the GMC serve to maintain the status and reputation of the medical profession and are thus of a benefit to it but that consideration cannot serve to displace the predominant purpose of public protection. Indeed if the medical profession, as such, does benefit from the GMC and its functioning it is arguably because this organisation does not exist for its 'purpose' but for the 'purpose' of the public, setting standards that are not compromised by self-interest.
17. We draw particular attention to the involvement of the Privy Council in the functioning of the GMC. Were Oxford University to adjust its curriculum and examining to accommodate the Respondent then, per Section 9, the matter might well become the subject of representations to, and orders by the Privy Council. The intimate involvement of this quintessentially public body is quite incompatible with the notion of the GMC as a trade organisation.
18. If the GMC is not a trade organisation does it fall wholly outside legislation against discrimination? Were it seemingly to do so that might raise a query as to the validity of the foregoing. In this context we have, as invited by the parties, considered the parallel anti-discrimination provisions of the Sex Discrimination Act 1975 and the Race Relations Act 1976. Parallel provisions to Section 13 of the 1995 Act are readily apparent in Section 12 of the 1975 Act and in Section 11 of the 1976 Act: each proscribes discrimination by trade organisations. However in the latter two Acts are further sections similarly proscribing discrimination by qualifying bodies, viz Section 13 of the 1975 Act and Section 12 of the 1976 Act. Thus, in the 1975 Act:

"Section 13(1). It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates engagement in a particular profession or trade to discriminate against a woman –

(a) in the terms on which it is prepared to confer on her that authorisation or qualification, or

(b) by refusing or deliberately omitting to grant her application for it, or

(c) by withdrawing it from her or varying the terms on which she holds it."

Section 12 of the 1976 Act is in similar terms and requires no separate recital. Pausing here, Mr. Goudie QC submits that for the purposes of these two Acts, the legislature was conscious that proscribing discrimination by trade organisations did not necessarily impact upon qualifying bodies as so defined, hence these two further sections. We should add that in GMC v. Goba (1988) IRLR 425 the GMC did not dissent from the proposition that it was a qualifying body for the purposes of Section 12 of the 1976 Act. We move on to the 1995 Act: this does not contain a like provision relating to qualifying bodies. We reject as a possible explanation that Parliament perceived qualifying bodies as coming under the heading 'trade organisations' and we are inclined to infer that the omission was deliberate. Parliament could proscribe sexual and racial discrimination by qualifying bodies without impacting upon the academic and professional standards of such. By contrast it perceived a risk that a similar provision proscribing disability discrimination by such could impact upon their academic and professional standards to the detriment of the public. As between disability discrimination and public safety Parliament arguably puts the latter first – a value judgment seemingly reflected in the specific scope given in the Medical Act 1983 to making allowances for disability, that is scope limited to that provided for with respect to pre-registration experience by Section 10(4). Dr. Burge's letter of the 14^th February 2000 serves to expose the problem: adjusting the curriculum requirements to accommodate perceived difficulties arising from disability in carrying out standard techniques might have been required from a GMC required to avoid disability discrimination, but what of the implications for a public safety if a registered medical practitioner has been allowed to forego training and examining in that skill?

19. In the overall result, we agree with the Employment Tribunal's initial ruling (see paragraph 13 of the Extended Reasons); we cannot agree with the subsequent reversal of this ruling whatever be the reason for such.
20. In the overall result this appeal must be allowed and the complaint dismissed. The Respondent's courage and determination command our respect: we warmly wish her well, conscious that the law has not allowed us to be constructively supportive.