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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> British Medical Association, R (on the application of) v General Medical Council [2008] EWHC 2602 (Admin) (03 October 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/2602.html Cite as: [2008] EWHC 2602 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
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B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF  BRITISH MEDICAL ASSOCIATION |
(CLAIMANT) | |
| -v- | ||
| GENERAL MEDICAL COUNCIL |
(DEFENDANT) |
____________________
Merrill Legal Solutions Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr R Engleheart QC appeared on behalf of the DEFENDANT
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Crown Copyright ©
British Medical Association of a decision of the General Medical Council of 22 May 2008, to abolish a concession to doctors aged 65 and over that they pay no annual retention fee to remain on the medical register. It comes before me for a rolled-up oral hearing as a matter of urgency, following an order of His Honour Judge Waksman QC who considered the papers on 15 August. He stayed the implementation of the decision, pending the outcome of these proceedings.
medical practitioners on the register, neither did they consult the BMA or other medical professional bodies such as the Royal Colleges, although they did give advance notice of their intention to act.
medical practitioners had a legitimate expectation of consultation; the absence of which renders the decision to abolish that concession conspicuously unfair and an abuse of power. Alternatively, he submits that the decision not to consult was perverse.
The legislative scheme.
Medical Act 1983 entitles an appropriately qualified person, whose fitness to practise is not impaired, to be a fully registered medical practitioner. Appropriate provision is made for those with overseas qualifications in the sections which follow. Registration brings with it the privileges, as they are described, set out in Part 6 of the Act. In reality, they comprise prohibitions for all those not registered.
medical advice, attendance or surgery unless he is registered.
medical officers in any NHS hospital, prison, in the armed forces or other public institutions.
medical practitioner.
"(1). Subject to the provisions of this Act, the
(a) prescribing a fee to be charged on the entry of a name or qualification in the register or on the restoration of any entry to the register;
(b) prescribing a fee to be charged in respect of the retention in the register of the name of the person;
(c) authorising the Registrar, notwithstanding anything in this Act, to refuse to make any entry in, or restore any entry to, the register until a fee prescribed by regulations under this section has been paid."
"Regulations under this section prescribing fees may provide for the charging of different fees in different cases and may provide that fees shall not be chargeable in cases prescribed by the regulations."
Medical Act 1969. Before that time, doctors paid a fee on initial registration and were then never troubled to pay a fee again. The fees regulations referred to are made by the GMC and are a form of delegated legislation.
General Medical Council Registration Fees Regulations 2008 which, by Regulation 8.1, provided:
"Any registered person who has reached the age of 65 years shall, on application to the registrar, be exempt from payment of annual retention fees."
The Age Regulations.
"(1). For the purposes of these regulations, a person ('A') discriminates against another person ('B') if:
(a) on the grounds of B's age, A treats B less favourably than he treats or would treat other persons, or;
(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but:
(i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons and;
(ii) which puts B at that disadvantage.
and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of meeting a legitimate aim."
general exceptions from the prohibitions in parts 2 and 3. Of note is Regulation 27, which provides that nothing in those parts shall render unlawful any act done:
" ... in order to comply with a requirement of any statutory provision."
medical bodies, appreciated that the Age Regulations would or might have an impact on the way these fees were charged. Consideration of the question was sparked by a letter to the GMC from Dr David Farrer-Brown, dated 30 January 2008. He was about to retire, but at the age of 60, rather than 65, and wished to be relieved of the fee. So his complaint was that he was being discriminated against, as compared to those over 65. His letter suggests that he appeared well versed in the detail of the legislation and asked expressly for an explanation of the legitimate aim that the apparent age discrimination was seeking to achieve. In his intervention, we see an application of the law of unintended consequences. Rather than extending the concession to those over 60, the GMC moved to abolish it for all. The explanation of what then followed can be collected from the statement of 5 September 2008 of William Roberts, the GMC's Director of Registration. I quote from paragraphs 20 to 24:
"20. Dr Farrer-Brown's letter prompted the GMC to be concerned that the scheme the ARF [I interpolate to say that that is the acronym for annual retention fee] (incorporating a purely aged-based exemption) might be unlawful. The GMC therefore sought advice from Dinah Rose QC, an acknowledged expert in discrimination law. By April 2008 the GMC had received preliminary advice from Ms Rose that the Age Exemption was likely to be unlawful and for that reason ought to be abolished.
"21. At a private GMC
"22. At at least one of the Committee meetings I attended, a suggestion was mooted that a new scheme might be introduced so as to provide an exemption not explicitly on the ground of age, but on the grounds of the number of years of service provided in the UK by the doctor. In response to this suggestion, the GMC considered what would be the likely effect of such an alternative scheme. The GMC concluded that such a scheme would disproportionately favour older
"23. The GMC considered, therefore, that any scheme based on the number of years of service would be likely to be not only indirectly discriminatory on grounds of age, but also risked being held indirectly discriminatory on grounds of race and sex.
"24. Ms Rose's final opinion was received in late April 2008. Ms Rose gave very clear advice that the Age Exemption amounted to unlawful discrimination on the grounds of age. Ms Rose also recommended that any transitional period phasing out the Age Exemption should be as short as possible."
"I am instructed to advise the GMC on the following issues:
"(a) Whether the provision at Regulation 8 of the GMC Registration Fees Regulations 2007, whereby a registered
"(b) If so, whether the GMC would be lawfully entitled to implement compatible arrangements as regards those doctors who currently benefit from Regulation 8 over a transitional period."
"(a) The current exemption under Regulation 8 for those aged 65 and over is almost certainly contrary to the Age Regulations. I am not aware that there is any justification for this age-based difference in treatment, which has the effect that younger doctors are subsidising those aged over 65, regardless of their earnings or the expense to the GMC of regulating them;
(b) It will be difficult for the GMC to justify a transitional period for moving to a lawful system. Whether there is any scope in law for such a period may depend on the outcome of an equal pay case, Cleveland and Redcar BC v Bainbridge (No 2), which was heard in January 2008 by the Court of Appeal, in which judgment is awaited."
"14. There is no doubt that the Fees Regulations treat registered
"15. My instructions do not seek to identify any legitimate aim pursued by the age exemption, or to suggest that the exemption is proportionate to any such aim. It is difficult to see how there could be a proportionate justification for this type of discrimination. Age is a poor proxy for a doctor's means, or the costs incurred by the GMC in regulating him. There does not appear to be any good reason why a doctor aged 64 who has retired from
"16. The Fees Regulations are made under statute, but they were not made by a Minister of the Crown, but by the GMC. The exception at Regulation 27 thus does not apply to them.
"17. Accordingly, unless some justification of which I am currently unaware (and the existence of which seems most unlikely) can be identified, the current regime is contrary to the Age Regulations, and involves unlawful discrimination against doctors under the age of 65.
"18. That being so, the GMC is under a duty to ensure that the current arrangements are changed as soon as possible, by securing the necessary amendments to the Regulations. A public authority which knowingly acts unlawfully, in the knowledge that its acts will probably cause damage to a third party, risks not only a claim for age discrimination but, potentially, a claim for misfeasance in public office."
Medical Officer for England and his counterparts in Scotland, Wales and Northern Ireland, together with the heads of the Royal Colleges, and also the Council for Regulatory Healthcare. His purpose in writing was to alert them to the problem that had been identified in leading counsel's advice. He indicated that there would have to be a change to the fees regulations and that the GMC was considering what to do. His letter invited questions from all recipients. Shortly thereafter, he wrote to all those on the register who were 65 or over and also to those who were due to become 65 in the relatively near future. He notified them of the problem and also indicated that the GMC was considering what it should do.
Council on 22 May. In advance of that meeting, Mr Roberts produced a paper to assist the Council in its consideration of this item of the agenda. In the light of the discussions that had taken place within the GMC after the receipt of Ms Rose's preliminary advice, and indeed her final advice, Mr Roberts' approach was to accept that the concession gave rise to unlawful discrimination. That was essentially because nobody within the GMC had identified a legitimate aim that the exemption from the fee could be said to justify.
medical practitioners who could be pressed into service in the event of a national emergency such as a flu pandemic. But the GMC did not see this as a point of substance. It would not provide any assistance in contacting non-practising doctors over 65, beyond that of keeping a simple list. And in any event, the Medical Act has now been amended with effect from 10 July to allow the temporary registration of doctors in an emergency.
"16. We have received leading counsel's advice that age exemption from the ARF is almost certainly unlawful, as it is contrary to the provisions of the Age Regulations.
"17. This is because age exemption from the ARF is based simply on age and, therefore, discriminates against doctors below 65 who cannot benefit from the exemption.
"18. Consequently, continuing with age exemption from the ARF would be lawful only if it met the test in Regulation 27 or Regulation 3.
"19. Regulation 27: Although the Fees Regulations are made under statute, the Regulations are made not by a Minister of the Crown but by
"20. Regulation 3: We do not believe that age exemption from the ARF could be classed as a proportionate means of meeting an aim of the GMC. We have invited the Department of Health (England) to confirm that they do not regard the age exemption as a proportionate means of meeting a national aim, for example as a way of encouraging doctors over 65 to remain registered and, thus, facilitate contact with those who might provide assistance in the event of a flu pandemic or other national emergency. If DH(E) were to conclude that age exemption from the ARF was a proportionate means of meeting a legitimate aim, we would wish that to be reflected in an amendment to the
Medical Act, in the event that there was a legitimate aim to which the exemption was a proportionate response, to put the matter beyond doubt. That reflects what I have read from his paper.
Council. Mr Roberts' view, that the exemption could not be justified, was thus not in any way qualified by anything said by the department. He told the Council on 22 May about the response he had received from the department. He provided draft amendments to the Fees Regulations. He sought agreement to the proposal that the exemption must be ended in order to comply with the Age Regulations. The mechanism of implementation would be that no new exemptions would be granted after 30 June 2008 and that existing exemptions would be withdrawn as from 31 October.
Council approved this scheme and made the necessary adjustments to the Fees Regulations. The questions of legitimate aim and proportionality were raised in the paper and were thus before the Council. The minutes of the meeting of 22 May, which cover much else apart from this topic, do not condescend to the detail of the discussion that took place. However, the amendments to the fee Regulations were approved without dissent. The Council was attended by 34 of its members on that day, with apologies from eight others. The Council is made up of distinguished practitioners and others from outside the medical profession. Many of those on the Council are elected to ensure representation across the broad spectrum of the medical profession. As it happens, four members of the Council are also members of the Council of the BMA. It is safe to assume, in my judgment, that the members of the Council on that day were not acting as ciphers, simply nodding through the recommendations of their officials.
Council took steps to ensure that it acted lawfully, and the Council agreed.
"There is one further matter that I would want to raise with you. Can you confirm that you have considered any legitimate expectations that there may be for you to undertake some form of non-statutory consultation or, at least, for the change you are proposing not to be a surprise for those affected?"
"The GMC took the view that consultation about whether or not it should comply with the law was neither mandatory nor appropriate. Moreover, any consultation process would simply serve to delay compliance by the GMC with the law. Also, as set out above, by the time of Mr Clarke's e-mail I had already written to key bodies, including not only the BMA but also the Chief
Medical Act does not require consultation before Fees Regulations are made. Conversely, it is recognised by the BMA that the Medical Act contain many provisions which impose a duty to consult. I mention four as illustrations. Pursuant to section 10(A)(6) and paragraph 1(A)(4) of Schedule 1, the Privy Council is required to consult the GMC before exercising some of its powers under the Act, the detail of which is immaterial.
Medical Act.
medical advisers to charities.
"37. But there is first a prior question - one of classification. To explain it, I must return to the texts: Lord Diplock in CCSU and Simon Brown LJ in Ex p Baker. First, Lord Diplock's category (b)(i) (CCSU at 408F-G):
"'To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either:
"'(a) ...
"'(b) by depriving him of some benefit or advantage which either (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational ground for withdrawing it on which he has been given an opportunity to comment ...'
"'2. Perhaps more conventionally the concept of legitimate expectation is used to refer to the claimant's interest in some ultimate benefit which he hopes to retain (or, some would argue, attain). Here, therefore, it is the interest itself rather than the benefit that is the substance of the expectation. In other words the expectation arises not because the claimant asserts any specific right to a benefit but rather because his interest in it is one that the law holds protected by the requirements of procedural fairness - the law recognises that the interest cannot properly be withdrawn (or denied) without the claimant being given an opportunity to comment and without the authority communicating rational grounds for any adverse decision...'
"38. Each of these passages refers to the same category of legitimate expectation, as Simon Brown LJ recognised in Ex p Baker at 90. But neither passage offers an objective criterion by which to decide whether the class of legitimate expectation in question should be applied to the case in hand (beyond the fact that the claimant has enjoyed the relevant benefit in the past). Neither formulation involves any prior representation, promise or practice. Simon Brown LJ recognised the want of any objective test. He said (Ex p Baker at 90):
"'Thus the only touchstone of a category 2 interest emerging from Lord Diplock's speech is that the claimant has in the past been permitted to enjoy some benefit or advantage. Whether or not he can then legitimately expect procedural fairness, and if so to what extent, will depend upon the court's view of what fairness demands in all the circumstances of the case. That, frankly, is as much help as one can get from the authorities.'
"39. I shall have to return to 'the court's view of what fairness demands in all the circumstances of the case' in the context of this category of legitimate expectation. But I should first state my view that it is best classified as a form of procedural legitimate expectation: it is the further class of procedural expectation to which I referred, but with no elaboration, at paragraph 32. I shall call it the secondary case of procedural legitimate expectation. It is to be noted that Lord Diplock's reference to the communication of 'some rational ground for withdrawing' [the benefit or advantage in question] gives the appearance of a procedural right: the right actually enjoyed is the right to make representations in response to such a communication. This is identical to the right afforded in the paradigm case of procedural legitimate expectation, where there has been a promise or practice by which just such an opportunity has been provided."
medical practitioners has been unlawfully frustrated. In respect of a secondary case of procedural expectation, Laws LJ posed a question:
"What are the conditions under which a public decision-maker will be required, before effecting a change of policy, to afford potentially affected persons an opportunity to comment on the proposed change and the reasons for it where there has been no previous promise or practice of notice or consultation?" (Paragraph 40).
"But the court will (subject to the overriding public interest) insist on such a requirement, and enforce such an obligation, where the decision-maker's proposed action would otherwise be so unfair as to amount to an abuse of power, by reason of the way in which it has earlier conducted itself. In the paradigm case of procedural expectations it will generally be unfair and abusive for the decision-maker to break its express promise or established practice of notice or consultation. In such a case the decision-maker's right and duty to formulate and re-formulate policy for itself and by its chosen procedures is not affronted, for it must itself have concluded that that interest is consistent with its proffered promise or practice. In other situations - the two kinds of legitimate expectation we are now considering - something no less concrete must be found. The cases demonstrate as much. What is fair or unfair is of course notoriously sensitive to factual nuance. In applying the discipline of authority, therefore, it is well to bear in mind the observation of Sir Thomas Bingham MR as he then was in Ex p Unilever at 690f, that '[t]he categories of unfairness are not closed, and precedent should act as a guide not a cage'."
"On the history here, I consider that to reject Unilever's claims in reliance on the time-limit, without clear and
"I apprehend that the secondary case of legitimate expectation will not often be established. Where there has been no assurance either of consultation (the paradigm case of procedural expectation) or as to the continuance of the policy (substantive expectation), there will generally be nothing in the case save a decision by the authority in question to effect a change in its approach to one or more of its functions. And generally, there can be no objection to that, for it involves no abuse of power. Here is Lord Woolf again in Ex p Coughlan (paragraph 66):
"'In the ordinary case there is no space for intervention on grounds of abuse of power once a rational decision directed to a proper purpose has been reached by lawful process.'
"Accordingly for this secondary case of procedural expectation to run, the impact of the authority's past conduct on potentially affected persons must, again, be pressing and focussed. One would expect at least to find an individual or group who in reason have substantial grounds to expect that the substance of the relevant policy will continue to enure for their particular benefit: not necessarily for ever, but at least for a reasonable period, to provide a cushion against the change. In such a case the change cannot lawfully be made, certainly not made abruptly, unless the authority notify and consult."
"There is nothing in the facts of this case to bring it within the narrow and specific compass, best exemplified by Ex p Unilever, which is the proper territory of this class of legitimate expectation."
Council, which had been part of far-reaching proposals for change where no question of the age exemption being intrinsically unlawful arose.
General Dental Council had not done so either when it abolished its age exemption, although the circumstances were different.
medical practitioners should be consulted before the age exemption was abolished. To use the language of Laws LJ, there was nothing in the impact of the GMC's past conduct on registered medical practitioners of any age which was pressing and focused, so that they could expect the policy to continue.
medical practitioners would have been cumbersome and time consuming in the face of a firm conclusion that the current practice was illegal.
Medical Act provides for consultation in the specified circumstances I have identified. That, of course, does not exclude the possibility that fairness could require consultation in connection with activities governed by that Act, notwithstanding that Parliament, having applied its collective mind to the issue generally, did not specify consultation. But the fact of those other provisions does support the proposition that in general terms, Parliament did not consider consultation a necessary precursor to changes to the structure of fees.
medical practitioners were entitled to be consulted, the court should have refused relief because it would have the effect of requiring the GMC to maintain an unlawful practice whilst the consultation was carried out. There is, in my judgment, much force in that argument, but it was not fully explored before me. And in light of my earlier conclusion, it is unnecessary for me to deal with it.
Medical Act.