Malone v The Specialist Training Authority of the Medical Royal Colleges

Article 12(2A) of the European Specialist Medical Qualifications Order 1995 imposed a duty on the Specialist Training Authority to determine applications made before 1 April 1998 by 1 November 1998. It did not impose a time bar preventing the Authority from considering later applications. A statutory time bar must be expressed clearly, particularly where it would deprive applicants of access to a transitional route. The provision had to be construed in the context of the Order and its legislative purpose. The consequences of the competing constructions were also relevant, but they did not justify implying a restriction absent from the text.

Dr Tessa Malone sought judicial review of decisions by the Specialist Training Authority refusing to consider her application for inclusion on the Specialist Register because it had been submitted after 1 April 1998. Her original application had not been pursued after the Faculty advised that family planning and reproductive health care was not a recognised speciality. That obstacle was removed when the Court of Appeal decided Hollingworth and others v STA [2003] EWCA Civ 452.

The central issue was whether Article 12(2A) of the European Specialist Medical Qualifications Order 1995 merely required the Authority to determine timely applications by 1 November 1998, or also prevented it from considering applications made after 1 April 1998.

1. Judicial review granted. The Chief Executive’s decision of 17 November 2004 and the Director of Appeals’ decision of 13 January 2005 were quashed.
2. Article 12(2A) imposed an obligation on the Specialist Training Authority to determine, before 1 November 1998, applications made to it before 1 April 1998. It did not impose a corresponding obligation on doctors to submit applications by 1 April 1998, nor did it prevent the Authority from considering later applications.
3. The provision had to be construed by identifying the legislative purpose and reading it in the context of the Order as a whole and the historical circumstances leading to its enactment. Delegated legislation was to be construed in the same manner as an Act of Parliament. The approach stated by Lord Bingham in R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687 at 695 [9] was adopted.
4. The wording did not impose any obligation on applicants. Where the draftsman intended to prevent inclusion on the Specialist Register, or to prohibit the STA from approving an application, the Order used express language. The court should not rewrite Article 12(2A) by adding a prohibition on applications after 1 April 1998.
5. The suggested construction did not produce an absurdity, inconsistency or unreasonable consequence. It was coherent for the STA to consider applications whenever made, while the Registrar of the GMC retained responsibility for deciding whether late applications under Article 12(1) should be accepted after 1 December 1998. The STA was therefore required to consider and determine Dr Malone’s application.
6. The STA was ordered to determine the application, and to consider any appeal against that determination. The defendant was ordered to pay the claimant’s costs.