Malone v The Specialist Training Authority of the Medical Royal Colleges [2005] EWHC 2470 (Admin)

Case No CO/981/2005[2005] EWHC 2470 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 8 November 2005
Before
THE HONOURABLE MR JUSTICE SILBER
Between
TESSA MALONEClaimantTHE SPECIALIST TRAINING AUTHORITY OF THE MEDICAL ROYAL COLLEGESDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Akhlaq Choudhury (instructed by British Medical Association) for ClaimantMr Philip Havers (instructed by Stone King) for Defendant
JudgementTHE HONOURABLE MR JUSTICE SILBER:I. Introduction
[1]This application raises the issue of ascertaining whether a doctor's application to have his name placed on the Specialist Register under the transitional scheme introduced in 1995 can be rejected because it was made too late if it was made to the Specialist Training Authority of the Medical Royal Colleges ("STA") after 1 April 1998. The issue arises in the application for judicial review bought by Dr Tessa Malone ("Dr Malone") with permission granted by Leveson J in respect of two decisions taken by the STA with regard to Dr Malone's application for inclusion on the Specialist Register. The decisions being challenged are:(i) the decision of the Chief Executive of the STA on 17 November 2004 that Dr Malone's application would not be considered by the STA as it was out of time and(ii) the decision of the Director of Appeals of the STA on 13 January 2005 refusing to entertain an appeal in respect of the Chief Executive's decision.[2]The specific issue to be determined on this application is whether it was necessary for Dr Malone's application to the STA for inclusion on the Specialist Register to have been made by 1 April 1998. Mr Akhlaq Choudhury counsel for Dr Malone contends that it was not necessary while Mr Philip Havers QC counsel for the STA submits that on the true construction of the relevant regulations, it was necessary so it now becomes necessary to explain the regulatory background.

II. Regulatory Background

[3]In the mid 1990s, changes were made to the way in which a medical practitioner could become a consultant in the National Health Service. Prior to 1996, appointments were made by a Health Authority, after an Advisory Appointments Committee had been satisfied that an individual was suitable for appointment.[4]In 1995, a new regulation ("the 1995 Order") was passed in order that the United Kingdom could comply with the provisions of EC law requiring free movement of doctors and this was amended in 1997 ("the 1997 amendment"). The amended 1995 Order is the European Specialist Medical Qualifications Order 1995 ("the Amended Order") and it required the GMC to maintain a Specialist Register. Entry on to that register was by two routes with one being by the award of a Certificate of Completion of Specialist Training (" CCST"). Such certificates were awarded by a newly created body, the Specialist Training Authority. The other route was for those holding a qualification from a European Economic Area country but it is not relevant to the present application.[5]The effect of the 1995 Order and the Amended Order was that only doctors, whose names appeared on the register could be appointed as consultants. It was therefore necessary for there to be some means by which those specialists, who were already in practice in 1995, could be included on the Specialist Register and so become eligible to practise as consultants. In essence, this was a transitional provision before the new regime took over and it is this transitional provision, which is the subject of the present application.[6]The relevant transitional provisions were contained in Article 12 of the 1995 Order, which contains the 1997 Amendment to the 1995 Order. Mr Havers helpfully produced a version of the 1995 Order with the deletions and additions introduced by the 1997 Amendment respectively shown by words being struck out and words underlined. Article 12 of the Amended Order provides that:
"Existing Specialist 12(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 January 19981st December 1998, or later if he satisfies the Registrar that there was good reason for not applying by then (paying any fee determined by the GMC) and satisfies him then or, in the case of a person who falls within paragraph (2C), 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 speciality other than general practice; or (b) he has been accredited in such a speciality; or (c) he has satisfied the STA that- (i) he has been trained in the United Kingdom in such a speciality and that training complied with the requirements relating to training in that speciality current in the United Kingdom at the time he undertook it, or (ii) he has qualifications awarded in the United Kingdom in such a speciality that are equivalent to a CCST in that speciality which, together with any experience which he has in the speciality 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 speciality. (2A) The STA shall, before 1st November 1998, determine, in respect of each person who applies to it before 1stApril 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 paragraph (2)(c)(ii), recommend that a person undertake such further training in the medical speciality in question, not exceeding 12 months in duration, as the STA consider 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 speciality.

(c) (ii)"

.

III. Dr Malone's Application

[7]Dr Malone is a specialist in Family Planning and Reproductive Health Care ("FPRHC"). By a letter dated 31 December 1997, Dr Malone submitted an application to the Faculty of FPRHC ("the Faculty") for inclusion on the Specialist Register. Such applications were normally made to the relevant Royal Colleges although the actual decision was then taken by the STA.[8]Dr Malone received advice from the Faculty that FPRHC was not recognised as a speciality by the STA within the meaning of Article 12(2)(c) of the Amended Order. Thus, on that view, any application by her for inclusion on the Specialist Register would therefore have been futile at that time as there was no prospect of her being able to satisfy the STA within the meaning of Article 12(2)(c). Accordingly, Dr Malone did not pursue her application at that time but she continued to work in her chosen speciality of FPRHC.[9]On 8 April 2003, the Court of Appeal gave judgment in Hollingworth andothers v STA [2003] EWCA Civ 452 in which it held that the STA had been wrong to regard FPRHC as not being a speciality within the meaning of Article 12(2)(c)(i). This decision reversed an earlier decision by a High Court Judge.[10]When this obstacle which had previously precluded her application for registration in 1997 had been removed, Dr Malone duly applied to the STA on 8 November 2004 stating that she believed that her case fell within the requirements of Article 12(2)( c) (i) of the Amended Order.[11]On 17 November 2004, the Chief Executive of the STA, wrote to Dr Malone rejecting her application on the grounds that it was out of time as it had not been submitted before 1 April 1998 as it was contended was required by Article 12(2A) and that there was no discretion on the part of the STA to accept late applications. That is the first decision, which is the subject of this present judicial review application.[12]Dr Malone appealed against that decision to the Office of the Director of Appeals. The Director of Appeals wrote to Dr Malone on 13 January 2005 stating that the Chief Executive had been correct in her conclusion and that there was an "absolute deadline" imposed by the Amended Order, which precluded consideration by the STA of any late applications. The Director of Appeals further stated that Dr Malone’s appeal would not be considered, as there was no decision of the STA from which to appeal. That is the second decision, which is the subject of the present application.[13]It is noteworthy that by a letter dated 15 June 2005, the General Medical Council ("GMC") informed Dr Malone's solicitor that if any doctor is able to satisfy the STA that he or she meets the requirements under Article 12(2)(c)(i) of the 1995 Order in FPRHC, the GMC would then accept a late application from that doctor with that speciality and then include his or her name on the Specialist Register. The letter explained that late applicants having this speciality of FPRHC would be accepted because prior to the Hollingworth decision referred to in paragraph 9 above, doctors who had applied for recognition in the FPRHC specialty would not have been able to have their training recognised because FPRHC was not then regarded as a speciality in its own right. So it is only the decisions under challenge, which preclude Dr Malone from being included in the Specialist Register because if the STA was to be satisfied under Article 12(2)(c), the GMC would then include her name on the Specialist Register, even though her application was made after 1 December 1998.[14]The importance of this dispute to Dr Malone is that unless a doctor's name is on the Specialist Register, he or she cannot become a consultant under the transitional scheme and so take advantage of the benefits and status that go with it.

IV. The Issues

[15]It is common ground between counsel that(i) the same considerations apply to the challenge to both decisions of the STA,(ii) the critical provisions in resolving this application are those in Article 12(2A), (2B) and (2C) because without them, Dr Malone would have been able to apply to the STA at any time and so her application would have had to have been considered and(iii) Hansard and the relevant EC directive do not shed any light on the interpretation of Article 12(2A) or the issues raised on this application.[16]The issue to be resolved is whether Article 12 (2A) of the Amended Order means that an application under Article 12(2)(c) of the Amended Order could only be considered by the STA if it was submitted before 1 April 1998.

V. The Claimant's Submissions

[17]Mr Choudhury contends that, as a matter of construction, the only effect of Article 12(2A) is that it compels the STA to reach a determination before 1 November 1998 in respect of any application made to it before 1 April 1998. That is to say, he submits that it provides a guarantee for such applicants that they will have a decision in sufficient time to meet the deadline for applying to the GMC, namely 1 December 1998.[18]He submits that Article 12(2A) does not restrict the STA's power to consider applications made after 1 April 1998. Were it to do so, he says then there would not have been any need to use the words, "in respect of". If the intention had been to remove the general power altogether and to preclude the STA from considering any application made after 1 April 1998, then the oft-used legislative phrase, "shall not consider", would have been more appropriate. Mr Choudhury submits that this is all the more so when (if the STA is right) the consequences of not applying in time would be to debar any attempt to be admitted on to the specialist register by the Article 12(2)(c) route.[19]In essence, his case is that there is no basis for construing the effect of Article12 (2A) any more widely than that which is contended for by the claimant.

VII. The Defendant's Submissions

[20]Mr Havers contends that Article 12(2)(c) must be read with Article 12(2A), which provides the time frame for satisfying the STA under Article 12(2)(C). The purpose underlying Article 12(2A) is clear. He submits that it was plainly essential that the STA should have decided whether it was satisfied under Article 12(2)(c) before the deadline for applications to the registrar under Article 12(1). The latter were required to be made before 1 December 1998; hence the date by which the STA had to be satisfied under Article 12(2)(c), which was by 1 November 1998. It was no less essential that in order that the STA should have time to determine applications to it under Article 12(2)(c), there had to be a deadline for those applications to be made to it. That deadline was 1 April 1998 and that accounts for the provisions of Article 12(2A).[21]Put shortly, therefore, Mr Havers' case is that if an applicant failed to apply to the STA before 1 April 1998, there was no provision for the STA to determine his or her application because Article 12(2A) restricts the STA to determine only those applications made to it before 1 April 1998. Mr Havers submits that the STA were therefore not entitled to entertain an application unless it was made to it before 1 April 1998 and in the result any person who had failed to apply to the STA before that date necessarily failed to satisfy the STA under Article 12(2)(c).

VII. The Approach to the Amended Order

[22]It is common ground between counsel that in order to construe Article 12(2A), it is necessary to determine the intention of the legislature when the relevant provisions were enacted.[23]Counsel agree that the parliamentary intention behind Article 12(2A) Act has to be discovered by considering those provisions in the light of the background against which they were enacted. Indeed, in a speech with which Lords Steyn, Hoffman and Scott of Foscote concurred, Lord Bingham of Cornhill explained in R (Quintavalle)v Secretary of State for Health [2003] 2AC 687 at 695 [9] that: "The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment".[24]Accordingly in some cases such as in Quintavalle, a particular statutory construction might have an initial obvious attraction but that approach might well be shown to be wrong when the Parliamentary intention is analysed further in the way explained by Lord Bingham.[25]This approach of Lord Bingham was to some extent foreshadowed by Lord Blackburn, who had said that the golden rule of construction was "that we are to take the whole statute together, and construe it all together giving the words their ordinary signification, unless when so applied, they produce an inconsistency or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification" (per Lord Blackburn in River Wear Commissioners v Adamson (1877) 2 App Case 743, 764).

Lord Reid has also explained that:

"it is also always proper to construe ambiguous words in the light of the reasonableness of the consequences" ( Garside v IRC [1968] AC 533, 612). 27. It is appropriate now to set out some of the basic and undisputed principles for construing the provisions in Article 12(2A) and they are that: (1). Delegated legislation is to be construed in the same way as Acts of Parliament. (Statutory Interpretation- Bennion (4th edition- 2002 page 216) (2). "
The Court's task within the permissible bounds of interpretation is to give effect to Parliament's purpose" (per Lord Bingham in Quintavalle (supra)". Discerning the parliamentary intention has been described as “the sole object in statutory interpretation” (Bennion (supra) ibid, page 405) (3). "So the controversial provisions should be read in the context of the statute as a whole and the statute as a whole should be read in the historical context of the situation which led to its enactment" (per Lord Bingham in Quintavalle (supra) 30. (4)Where there is uncertainty as to the meaning of a particular word in a statutory provision, a court can take account of "the reasonableness of the consequences" of the particular construction (per Lord Reid in Garside (supra) because if the words in question when construed with their ordinary meaning " produce an inconsistency or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification" (per Lord Blackburn in River Wear Commissioners v Adamson "(supra)". VIII.

(i) The Issue

[28]It is common ground that the issue on this application is whether Article 12(2A) confers not merely obligations on the STA to determine before 1 November 1998 applications under Article 12(2) (c) submitted to it before 1 April 1988 ("the STA obligation") but whether (as Mr Havers alone contends to be the case) it also requires doctors applying under that provision to submit their application before 1 April 1998 ("the application time-bar obligation"). As I have explained, Mr Choudhury contends that Article 12(2A) does not impose the application time-bar obligation. (ii). The Context of the Amended Order and Article 12(2A)[29]As I have already explained in paragraph 23 above, Lord Bingham has explained that “controversial provisions should be read in the context of the statute as a whole and the statute as a whole should be read in the historical context of the situation which led to its enactment". So I shall now consider the context of Article 12 (2A) and the 1997 Amendment, in respect of which, Mr Havers contends that the purpose of the 1997 Amendment to Article 12 was to introduce greater flexibility into the transitional arrangements in Article 12 by enabling the STA to recognise experience and further training undertaken at the recommendation of the STA in addition to qualifications when assessing a doctor for entry to the Specialist Register. That contention is uncontroversial but he goes on to make the significant submission in his skeleton argument, which states with my emphasis added, that:
"Consequently, the decision was taken to extend the date for applying to the Registrar from 1 January 1998 to 1 December 1998 and, unsurprisingly, given the passage of time which had already elapsed since the transitional provisions had come into force, the decision was also taken, it is submitted, to introduce a deadline for making applications to the STA under Article 12(c); hence Article 12(2) (A). This, it is submitted, was both the purpose and the context of the amending Order and thus the context of the amending for the proper construction of the Order as a whole (i.e. as amended)"
[30]Before analysing this contention, it is appropriate to mention three factors to which Mr Havers attaches importance of which the first is the background to the 1997 Amendment and in particular the length of time, which had already been given to doctors, such as Dr Malone, to register under the transitional provisions. The 1995 Order was laid before Parliament on 13 December 1995 and Article 12 of it came into force on 12 January 1996. This meant that doctors like Dr Malone who were seeking to register under the transitional provisions had two years to apply under the 1995 Order and almost three years to apply under the 1997 Amendment, which had extended the period for applying to the GMC until 1 December 1998. Mr Havers says that it is an important background factor that doctors had such a long period to apply under the transitional provisions.[31]The second factor relied upon by Mr Havers is that he contends that the 1997 Amendment sets out a clear timetable because first the applicant doctor has until 1 April 1998 to apply to the STA under Article 12(2A), second the STA then has until 1 November 1998 to determine the application and third the applicant then has until 1 December 1998 to apply to the STA. Mr Haver's final factor is that Article 12 is only dealing with an interim measure as doctors, such as Dr Malone, could always apply for registration by invoking other Articles of the Amended Order.[32]At this stage, my task, is to consider in Lord Bingham's words without considering the express words of Article 12 (2A) whether "the context of the [statutory instrument] as a whole and the [statutory instrument] as a whole should be read in the historical context of the situation which led to its enactment" can throw any light on the meaning of Article 12(2A) and in particular whether it contained the application time-bar obligation. As I have explained, Hansard and the EC Directives do not assist and that means that it is necessary to see if any assistance can be derived from the actual wording of Article 12 or elsewhere in the 1997 Amendment. I am unable to accept Mr Havers' contention that the purpose and the context of Article 12(2A) was to impose the application time-bar obligation on doctors because there is nothing in Article 12 or elsewhere in the 1997 Amendment, which indicates that the context of Article 12(2A), when considered by itself or together with the 1997 Amendment, was to impose the application time-bar obligation. The context of Article 12(2A) does not indicate that it contains the application time bar obligation or anything other than the STA obligation. The fact that doctors may have had almost three years to apply to the STA does not mean either in itself or together with any other factors, such as those relied upon by Mr Havers in paragraphs 30 and 31 above that the context of Article 12 or the 1997 Amendment was that there should be any time limit on doctors to apply to the STA in the absence of any express statutory obligation. I will now turn to consider what can be gleaned from the express wording about whether the statutory intention of Article 12(2A) was to impose an application time-bar obligation on doctors as Mr Havers considers to be the case. (iii). What does the Express Wording of Article 12(2A) mean?[33]In my view, the wording of Article 12(2A) shows that it was not intended that it should constitute an application time-bar obligation on doctors, which would have meant that the STA was not entitled to consider applications after 1 April 1998. I have reached that conclusion for the following reasons, which I will now set out in no particular order of importance.[34]First, Article 12(2A) does not impose any obligation on applicants but merely an obligation on STA to determine applications by 1 November 1998 of those who had applied to it by 1 April 1998. If the legislature had intended to impose the application time-bar obligation on doctors, it would surely have stated so expressly but it did not do so.[35]Second, when the draftsman of the Amended Order wishes to state that a doctor is precluded from having his or her name included, then this is stated expressly. I have already quoted in paragraph 6 above Article 12(1) which states the circumstance in which a doctor is entitled to have his name included and that by implication makes it clear when his or her name can be excluded but there is no similar provision in relation to the application to the STA. Furthermore if it had been intended that Article 12(2A) would preclude applications the draftsman would have used words such as those adopted in Article 7(1), namely that "the STA shall not approve". The failure of the legislation of these similar words in Article 12(2A) supports the conclusion that the legislature did not intend that Article 12 (2A) would preclude a doctor applying to the STA after 1 April 1998.[36]Third, if the legislature had intended merely to impose obligations on the STA to determine before 1 April 1998 applications under Article 12(2) (c) submitted to it before 1 April 1988 but not to introduce the application time-bar obligation, it would have used the precise words, which it did. In other words, the wording used is totally consistent with the submissions of Mr Choudhury.[37]Fourth, if the submissions of Mr. Havers were sound, this would entail rewriting Article 12 (2A) so that it includes the following words or similar words “no person will be entitled to apply to the STA for the purposes of sub-paragraph (c) of paragraph (2) after 1 April 1998”. There is no reason why this provision could not have been included in Article 12 as this is not a case where an uncontemplated development has occurred after the Amended Order was enacted.[38]Fifth, there is no basis for not construing Article 12(2A) without the application time-bar obligation on the grounds that such an interpretation should not be adopted because, of the approach advocated by Lord Blackburn, which I have quoted in paragraph 25 above, namely: "that we are to take whole statute together, and construe it all together giving the words their ordinary signification, unless when so applied, they produce an inconsistency or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification”.[39]Next, in reaching that conclusion, I have not overlooked Mr. Havers’ submission that if there was no restriction imposed on when applications can be made to the STA (which I have concluded is the correct position), that would produce an “absurdity or inconvenience so great as to convince the court that the intention could not have been to use the words in their ordinary signification”. In my view there is nothing absurd about the STA being obliged to consider applications whenever made with the Registrar of the GMC subsequently being entitled to reject application made after 1 December 1998 in the absence of a good reason for not applying before 1 December 1998. On the contrary, I would have thought that there would be a good reason for only having one body deciding whether to accept post-1 December 1998 applications, and that function was fulfilled by the Registrar.[40]Mr Havers submitted that accepting Dr Malone's interpretation of Article 12(2A) would lead in Lord Blackburn’s words to “an inconsistency or an absurdity or inconvenience”. I am unable to agree because no evidence was adduced by the STA to show that it would be inconsistent, absurd or inconvenient for the STA to have to consider applications under Article 12(2)(c ) after 1 April 1998. No material, for example, was put forward to show that the STA would have onerous, inconvenient or unreasonable demands imposed on it if it had to consider applications after 1 April 1998. In any event, there is a powerful counter argument that it would be "inconsistent" for the STA to be able to refuse to consider Dr Malone's application, which was delayed pending the reversal by the Court of Appeal of the initial Hollingworth decision while those specialists in FPRHC who had applied before 1 April 1998 while awaiting the Hollingworth decision would have their applications considered. In both cases the applications would be actually considered by the STA at about the same time and long after 1 April 1998.[41]Finally, I am unable for two reasons to agree with Mr Havers that the STA should not be obliged to consider applications under Article 12(2) (c) submitted after 1 December 1998 because in construing Article 12 (2A), as Lord Reid explained in his speech quoted in paragraph 26 above, "it is also always proper to construe ambiguous words in the light of the reasonableness of the consequences”.[42]First, as I have sought to explain in paragraph 34 to 37 above, I do not consider that there is anything "ambiguous" about the wording of Article 12(2A) and so Lord Reid's guidance is not relevant. Second, in any event for the reasons set out in Paragraphs 39 and 40 above, I do not consider that there is anything unreasonable in holding that doctors can apply to the STA after 1 April 1998 especially as subsequently the Registrar would not accept an application made after 1 December 1998 in the absence of good reasons.

IX. Conclusion

[43]For the reasons set out above, the STA was obliged to consider Dr Malone's application of 8 November 2004 notwithstanding that it was made after 1 April 1998.[44]In the light of this judgment the parties have agreed that that the Order I should make is that: 1. The decision of the Chief Executive of the defendant on 17 November 2004 that the claimant's application would not be considered by the defendant be quashed; 2. The decision of the Director of Appeals of the defendant on 13 January 2005 refusing to entertain an appeal in respect of the Chief Executive's decision be quashed; 3. The defendant shall before 9 January 2006 consider and determine the claimant's application for inclusion on the specialist register, which application shall be submitted by the claimant to the STA on or before 25 November 2006. 4. The Director of Appeals of the defendant shall, within two months of the date of the claimant submitting any appeal in respect of any such determination of the defendant, consider that appeal; and 5. The defendant shall pay the claimant the costs of this application such costs to be subject to detailed assessment if not agreed.