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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Hollingworth, R (on the application of) v Specialist training Authority of the Medical Rolyal Colleges [2002] EWHC 1214 (Admin) (21 June 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/1214.html Cite as: [2002] EWHC 1214 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		June 21, 2002

Mr Justice Lawrence Collins:

I Introduction

1. Until 1996 the only statutory requirement for appointment as a consultant in the National Health Service was that the applicant should have been a registered medical practitioner and could satisfy an Advisory Appointments Committee that the applicant met the appropriate standards. Committees convened for this purpose included assessors appointed by the Royal Colleges of Medicine who by convention could not be outvoted by the other members. There was no defined list of medical specialties, and a consultant could be appointed in any discipline in which an NHS employer was willing to convene a Committee, but it would not be possible to convene one without participation of the relevant Royal College, who only participated after approving the job description for the post.
2. A separate area (to use a neutral word) in the field of family planning and reproductive health care (sometimes called sexual and reproductive health) emerged in the late 1980s/early 1990s, and about 70 doctors were appointed as NHS consultants in this field.

II The legislation

3. The European Specialist Medical Qualifications Order 1995, S.I. 1995 No 3208 (“the 1995 Order) was made under the European Communities Act 1972, s 2(2), in order to implement Council Directive 93/16/EEC on the facilitation of the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications. Article 11 (in conjunction with Sched. 5) of the 1995 Order provides that a person may not take up a consultant post in the NHS unless his name is included in the specialist register kept by the GMC, as does regulation 7 (which came into effect prior to Article 11 of the 1995 Order) of the National Health Service (Appointment of Consultants) Regulations 1996, S.I. 1996 No. 701.
4. The broad effect of the 1995 Order is as follows: (a) the competent authority for the purposes of the recognition and registration of specialist medical qualifications is the General Medical Council (the “GMC”): Article 3(2); (b) the competent authority for the purposes of specialist medical training and the issue of Certificates of Completion of Specialist Training (“CCSTs”) is the Specialist Training Authority of the Medical Royal Colleges (“the STA”): Article 3(3); (c) the membership of the STA comprises persons appointed by the Secretary of State (4 members), the GMC (2 members) and the Faculties and Royal Colleges (1 each): Schedule 1; (d) medical specialties are listed in Schedule 2 (and include obstetrics and gynaecology) but the list is not expressed to be exhaustive: Article 2(3)(c); (e) the GMC keeps a register of specialists, which is to contain the names of those who hold a CCST awarded by the STA and other eligible specialists (mainly those from EEA states): Article 8.
5. Since the effect of the 1995 Order was that only doctors who held CCSTs in a medical specialty and were on the specialist register kept by the GMC could be appointed as consultants it was necessary to have transitional provisions to allow specialists who were already practising (including those who were already consultants) to apply to be on the register so as to become eligible for consultant posts.
6. Accordingly Article 12 of the 1995 Order, as amended by S.I. 1997 No 2928 as underlined below, provides

“(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 1st December 1998 ... and satisfies him then or, in the case of a person who falls within paragraph 2(C), before 1st 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 has 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 1st November 1998 determine in respect of each person who applies to it before 1st April 1998 for the purposes of sub-paragraph (c) of paragraph (2), whether or not it is satisfied as mentioned in that sub-paragraph.

(2B) Until 1st 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 purposes of sub-paragraph (2)(c)(ii). ”

7. Following the 1995 Order, existing consultants made successful applications to the GMC for inclusion in the specialist register under Article 12(2)(a), including about 70 consultants in the field of community gynaecology.
8. In R v. Specialist Training Authority of the Medical Royal Colleges, ex parte British Medical Association [1999] Ed C.R. 661 the BMA sought judicial review of requirements imposed by the STA in relation to Article 12(2)(c)(ii) that applicants for the specialties of Surgery and of Accident and Emergency medicine should pass specified examinations irrespective of experience. It was held that the STA was entrusted with the task of being satisfied that an applicant had acquired equivalent expertise, and the STA was entitled to specify certain minimum criteria which it could insist had to be satisfied by every applicant as a condition of satisfying the test of equivalence.
9. An appeal panel in the case of Dr Horrocks concluded that there was strong evidence that consultant-led discipline had existed in the field of family planning since 1990. The doctors in the present cases applied to be included in the specialist register. All three doctors produced evidence from senior colleagues that they were working at a level equivalent to that of a consultant in family planning or community gynaecology. They applied for judicial review of the decisions of the STA appeal panels which rejected their contention that the field of family planning was a separate specialty in which they had had sufficient training and experience to qualify them to be entered on the register. Munby J in the case of Dr Hollingworth, and Scott Baker J in the case of Dr Khan, refused permission to the doctors to apply for judicial review of the decisions of the appeal panels, but the Court of Appeal (Simon Brown and Mantell LJJ) gave permission on the ground that it was arguable that the appeal panels did not adequately recognise the inconsistency between their views and that of the Registrar of the GMC. Subsequently Ouseley J gave permission in the case of Dr Kundu, which raised similar questions.

III Drs Hollingworth, Khan and Kundu

10. Dr Hollingworth qualified in 1978, and practised as a GP. In 1984 she became a senior clinical medical officer and clinical teacher at the Margaret Pyke Centre. In 1988 she became a senior clinical medical officer at the Margaret Pyke Centre (Camden and Islington NHS Trust) for study and training in family planning and reproductive health care, where in 1990 she was locum deputy director for 8 months and locum director for 3 months. She writes and lectures on reproductive health matters. She is also an examiner for the membership examination of the Faculty of Family Planning and Reproductive Health Care of the Royal College of Obstetricians and Gynaecologists (“RCOG”). In 1999 she became Clinical Lead in Reproductive Health for Redbridge, Barking, Havering and Brentwood. It has consultant terms and conditions, and was originally envisaged as a consultant post.
11. Dr Khan is an obstetrician/gynaecologist. She qualified in India, and became MRCOG in London in 1981 and FRCOG in 1996. She had training to the level of a senior SHO post, Registrar and 3rd on-call SHO, in which post she worked in a busy District and General Hospital alternating with the Registrar and Senior Registrar. In 1995 she was short-listed for a consultant post in family planning and reproductive health care approved by an Advisory Appointments Committee. 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.
12. Dr Kundu qualified in India and obtained MRCOG in 1996. His specialty is psychosexual therapy/medicine. Since 1997 he has been Senior Clinical Medical Officer/Head of Contraception and Sexual Health Service at St Michael’s Hospital, Lichfield, Staffordshire. He was appointed to that post when it was vacated by the consultant in Contraceptive and Sexual Health. The Chief Executive Officer for the NHS Trust confirmed that the appointment panel considered that he fulfilled the training and skills requirement of the consultant post, to which he could not be appointed because he was not on the specialist register. He is involved in teaching and assessment of medical students and doctors, and examines for the Central Lancashire University, and is an Honorary Senior Lecturer at Wolverhampton University.
13. Each of the doctors applied to the STA for entry on the specialist register. In 1998 the RCOG assessed Dr Hollingworth for entry on specialised register and recommended to the STA that her application should be rejected because she did not hold MRCOG, had not completed 2 ½ in a relevant approved training post, and had not completed 12 months in RCOG approved senior registrar post or year 4/5 post. The STA required her to pass MRCOG and compete for a place on recognised specialist registrar training programme, and advised that successful completion would lead to the award of CCST. In the case of Dr Khan, her application was rejected on the ground that she had not completed 2½ years in a relevant approved training post and not completed 12 months in a RCOG approved senior registrar or year 4/5 post or equivalent. She was therefore also advised that she should compete for a place on the recognised specialist register training programme and undertake 4 years further training including 2 years at year 4/5 level, and was advised that successful completion of this would lead to the award of a CCST. The conditions laid down by the STA for Dr Kundu are not in the papers on this application, but no doubt were comparable to those in relation to Dr Khan.
14. Each of the doctors appealed to the appeal panel of the STA, which is established by the 1995 Order to (inter alia) reconsider and determine whether a person who fails to satisfy the STA of the matters in Article 12(2)(c) should so satisfy it: Article 13(1).

IV The decisions of the Appeal Panels

15. Each of the panels rejected the appeal.

Dr Hollingworth

16. The essence of the decision was that, although it accepted that new specialties emerge from time to time, the panel could not accept that an area of medicine as narrow as that practised by Dr Hollingworth constituted a specialty in its own right. It was not something new and different but a patently small part of an already established specialty, and the panel considered that it did not hear any evidence which convinced it that this area was not encompassed by the sub-specialty of community gynaecology. Community gynaecology encompassed all areas which Dr Hollingworth mentioned as part of family planning. It was one of five sub-specialties in which the RCOG had set up training programmes approved by the STA and the only sub-specialty in which the RCOG had set up a separate faculty (the Faculty of Family Planning) with a membership examination, albeit for those seeking Non-Consultant Career Grade (NCCG) posts. For those who sought consultant posts in community gynaecology there was a core training programme followed by a 2 year sub-specialty programme, and the panel found it inequitable that someone who had undergone this rigorous training programme and studied for and passed the MRCOG should be regarded on the same basis as someone who had spent no more than a few days or weeks on recognised training courses leading to lesser qualifications and otherwise relied on experience alone.
17. The panel went on to consider the consider the position under Article 12(2)(c)(i) (and (ii)) on the basis that, if it were incorrect on its main conclusion, the specialty of family planning did exist. It noted that the relevant matter on which the STA had to be satisfied is 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 ....”. Dr Hollingworth had argued her case for inclusion on the Specialist Register on the basis that she was unable to conclude a formal training in family planning as no such training existed at the relevant time in her career, but that she succeeded in obtaining certificates for whatever training opportunities did exist. She was a “trail-blazer”, i.e. a formal training programme did not exist or had just recently been introduced and where it had been normal practice to admit those who are in the field as it changed to a consultant led specialty. It was submitted that she had very extensive experiential learning, was regarded as a “expert” in the field of family planning, and currently filled a consultant post in all but name. She submitted that the whole approach of the STA had been incorrect, insofar as it relied wholly on formal training, in which case her certificates were clearly inadequate. What she had done was to follow everything Professor Guillebaud (of the Margaret Pyke Centre) said.
18. The panel agreed that the provision did not specify that the training had to be formal or that it must be training carried out in accordance with a formal training programme. It was the unanimous view of the panel that the length and depth of her training and experience and the level of her qualifications did not bear comparison with that of most doctors whose names had been included on the Specialist Register in other branches of medicine. She spent only 10 months as an SHO in obstetrics and gynaecology, which fell well short of the 2 years which was generally recognised as necessary to complete basic training in any specialty. Although she indicated she would be able to recognise and appropriately refer gynaecological conditions the panel was concerned that she had no basic gynaecological training.
19. It was appreciated that a not insignificant number of family planning consultants had already been included on the Specialist Register, but a distinction had to 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 on to it under the provisions of Article 12(2)(a) and those individuals presently occupying a consultant role/clinical lead, who had neither been formally appointed as a specialist nor obtained appropriate qualifications to obtain a CCST. 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 was unfortunate that she had not been appointed as a consultant by the time the order came into force.
20. The panel also considered that she did not undertake an acceptable amount of informal or formal training or experiential learning. She intended to be a GP and thought what she was doing was part of general practice. She could not have realised at the time she was undertaking specialist training in family planning, because the specialty did not exist. Rather she was pursuing an interest in the best way she could. The training was part of her development as a GP. It would set a very dangerous precedent if a doctor was deemed to have undertaken sufficient training in a specialty relying in the main on the advice and informal supervision of one consultant, rather than following the accepted route of rotating between different departments in several hospitals, including time being spent in a teaching hospital.

Dr Khan

21. The panel noted that there was evidence that a consultant in family planning, Dr Wordsworth, had been entered in the Specialist Registrar. The panel accepted that there was considerable evidence in support of Dr Khan’s contention that the field of family planning and reproductive health care was an expanding field, but the panel believed that it was a sub-specialty of obstetrics and gynaecology and not a specialty. It also accepted that new specialties could and would emerge but resolved that it was a responsibility of the RCOG and the STA to define them. The panel rejected the submission that the fact that the consultants had been registered in that specialty under Article 12(2)(a) meant that there was such a specialty.
22. As regards the criteria in relation to Article 12(2)(c)(i), the panel seems to have approached it on the basis that Dr Khan might be correct in her principal submission that the panel should be considering training in community gyaecology. It accepted the submission of the STA that, following the reasoning of Dyson J, it was for the STA and the Royal Colleges to lay down the minimum criteria. Since there was no specialty in family planning and reproductive health care at the relevant time, there was no formal training programme in existence. Dr Khan did not satisfy the relevant training requirements, because experience could not be included under (i) by contrast with the position (ii).

Dr Kundu

23. The panel decided that to qualify as a new specialty there had to be full training which would be equivalent to the training required as to breadth and length of the specialties already included in Schedule 2. Family planning did not have that training either at the time Dr Kundu was due to undertake it or subsequently. He had obtained the MRCOG in 1996 but had not completed any post-MRCOG training in any recognised Specialist Registrar training post. His diploma of the Faculty of Family Planning was not completed over a period which would be comparable with post-MRCOG training in any other specialty and the panel therefore concluded that it could not be counted towards training in the specialty of Obstetrics and Gynaecology.
24. Accordingly, there was no new specialty of family planning and he could not by reference to training bring himself within (i). He could not bring himself within (ii) because he did not have a minimum of 24 months at Specialist Registrar level. The post which he currently held would not be recognised a being an equivalent training post as it did not have the necessary breadth of knowledge, responsibilities, skills and competencies, which would have been required for the full specialty. Accordingly, although he satisfied the panel that he had a level of expertise equivalent to an award of a CCST in the sub-specialty of community gynaecology, that did not go far enough to satisfy the requirements of (ii).

V Conclusions

25. The main argument for the applicants is that as a matter of law the STA improperly concluded that there was no medical specialty in family planning. A specialty is a recognised medical area in which there have been appointments to consultants in the past. Schedule 2 of the 1995 Order did not provide an exhaustive list of medical specialties, and accordingly family planning might be a specialty even though not listed in Schedule 2. Prior to the implementation of the 1995 Order individuals were appointed to consultant posts in family planning, and were admitted to the Specialist Register by the Registrar of the GMC under Article 12(2)(a) on the basis that they were consultants in the National Health Service in a medical specialty other than general practice. Article 2(3)(c) could not be construed as being confined to listed specialities and other specialities which might emerge after the implementation of the order.
26. The words “in such a specialty” referred to the words in sub-paragraph (a), “a medical specialty other than general practice”. The word “specialty” must have the same meaning in (a) and (c)(i). Accordingly, if something were a specialty within the meaning of the former, it must also be a specialty within the meaning of the latter. Alternatively the decisions of the STA were unlawful since the STA did not take proper account of the fact that its decisions created a different meaning of “specialty” nor explain how the difference arose.
27. Parliament must have intended that (c) would cover people in the same specialties as those consultants who had been registered by the Registrar of the GMC but who did not have the title of consultant. It cannot have been intended that the STA would have power to say that it was not a specialty even though consultants had been appointed before 1997 in that specialty. That was particularly so since representatives of the Royal Colleges had been on the Advisory Appointment Committees, and material was adduced at this hearing which indicated that CCSTs are awarded in community gynaecology (although the STA did not accept this, and I do not take it into account).
28. I have the greatest sympathy for these distinguished doctors, but I have come to the clear conclusion that it was for the STA to decide under the transitional provisions what was a medical specialty and to identify the training and experiential criteria.
29. The starting point is that under the 1995 Order the competent authority for the purposes of the recognition and registration of specialist medical qualifications is the GMC and the competent authority for the purposes of specialist medical training and the issue of CCTs is the STA: Article 3(2),(3).
30. The combined effect of Article 12(1) and (2)(a) is that the Registrar of the GMC must include a doctor in the specialist register if the doctor is, or has been, a consultant in the NHS in a medical specialty other than general practice. The Registrar has registered consultants in community gynaecology in a number of cases without objection from any interested party.
31. The Registrar must also register a doctor in the specialist register if the doctor has satisfied the STA that he has been trained “in such a specialty” as required by Article 12(2)(c)(i). “Such a specialty” means a medical specialty other than general practice. So also under Article 12(2)(c)(ii) the qualifications must have been awarded in “such a specialty”.
32. There is no reason on the face of Article 12(2)(c) to suggest that it is for any entity other than the STA to be satisfied of these matters. In essence the only point made on behalf of the claimants which had any weight was that the Registrar of the GMC had previously accepted that what the claimants did amounted to a medical specialty for the purposes of Article 12(2)(a), and had admitted consultants in that field to the specialist register, and consequently it was irrational for two bodies to be making inconsistent decisions. But the structure of Article 12 is that there are different decision-making bodies: the Registrar of the GMC for the purposes of decisions under Article 12(2)(a) and the STA under Article 12(2)(c). It was for the STA to decide whether family planning and reproductive health care was a relevant medical specialty, as opposed to a sub-specialty of obstetrics and gynaecology, and there are no grounds for interfering with its judgment that it was not. In each case the panel correctly directed itself that the fact that it was not a specialty identified in Schedule 2 was not conclusive. In each case the panel took account of the fact that the Registrar of the GMC had taken a different view for the purpose of admitting existing consultants.
33. I therefore agree with Munby J that the different decision making bodies have in relation to their different class of applicant to ask themselves the same question, there is nothing in the 1995 Order to indicate that the STA is in any way bound by the prior decision on a corresponding point made by the Registrar.
34. That disposes of the challenges directed at the criteria applied by the panels to training under Article 12(2)(c)(i). The challenges to the application of Article 12(2)(c)(i) (and in the case of Dr Kundu, Article 12(2)(c)(ii)) were predicated on the basis that the panels should have approached them on the basis that the relevant specialty was family planning and reproductive health care. The panel in the cases of Dr Hollinworth, and (it seems) the panel in the case of Dr Khan approached it on that basis in case they were wrong on the decision that it was not a specialty. In the case of Dr Kundu, the panel found that he had a level of expertise equivalent to an award of a CCST in the sub-specialty of community gynaecology but this was not enough because sub-specialties could fulfil only part of the criteria necessary. Dr Kundu’s case was that under Article 6(1) of the 1995 Order a CCST is awarded by the STA to indicate that it is satisfied that the individual “has satisfactorily completed specialist medical training, in the specialty stated in his application .....”. Since the CCST is a set standard, it entitles an individual to be entered onto the Specialist Register.
35. There would have been no basis for a challenge to the panels’ approach even if family planning and reproductive health care were a specialty. Neither (i) nor (ii) could be applied literally on the claimants’ view of the applications, since if community gynaecology were a specialty there were no “requirements relating to training in that specialty current in the United Kingdom at the time [the doctors] undertook it” (Article 12(2)(c)(i)) nor did Dr Kundu have “qualifications awarded in the United Kingdom in such a specialty” (Article 12(2)(c)(ii)). In each case the panels adopted a constructive and non-literal approach and they cannot be criticised on that ground. It is the responsibility of the STA to set the standards, and there would have been no arguable error of principle. In particular it is obviously rational and reasonable to consider on a comparative basis the training in other specialties in order to come to a view on what would be appropriate training and qualifications.
36. Accordingly, the challenges must fail.
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MR. JUSTICE LAWRENCE COLLINS: For the reasons given in the judgment handed down the challenges fail.PRIVATE 

MR. HAVERS: None of these claimants is legally aided. They have all been backed by the BMA. I seek the defendant's costs of the applications. In relation to two of them, Drs Hollingworth and Khan, they have come before the court already on applications for permission. In relation to Dr Hollingworth, Munby J made no order for costs in relation to the permission hearing. I do not seek to re-open that. In relation to Dr Khan's application, Scott Baker J made an order that he pay the costs of the application. That order has not been complied with. The STA have not pressed for it to be complied with pending the outcome of the hearing.

MR. JUSTICE LAWRENCE COLLINS: There was a summary assessment?

MR. HAVERS: No, there was not. I wanted to make it clear that the respondent would expect that claimant to meet the existing liability in relation to the earlier permission hearing. That leaves the costs in relation to these applications.

MR. JUSTICE LAWRENCE COLLINS: The Court of Appeal was only in Hollingworth?

MR. HAVERS: Yes, but the Court of Appeal subsequently gave permission in relation to Dr. Khan by reason of the earlier permission having been granted in relation to Dr Hollingworth. In relation to Drs Khan and Hollingworth I seek the respondent's costs from the dates respectively when the Court of Appeal gave permission to apply for judicial review in those two cases. So far as Dr. Kundu is concerned, that did not go to the Court of Appeal. Permission was granted by Ouseley J in view of the grant of permission by the Court of Appeal. I seek the respondent's cost throughout in the case of Dr. Kundu.

MR. LEIPER: There is nothing I can say. There has been no schedule of costs served.

MR. JUSTICE LAWRENCE COLLINS: You may have costs as asked.

MR. LEIPER: Given the considerable importance to the particular individuals involved and also the fact that it is a matter of statutory construction, I would like to apply for permission to appeal.

MR. JUSTICE LAWRENCE COLLINS: I refuse permission.