General Medical Council v Nakhla

For specialist registration through the equivalence route, a qualification is not automatically equivalent to a CCT merely because it is a specialist qualification. The Registrar must assess qualifications, training, knowledge and experience together where appropriate. Equivalence means equal value, not identical experience, and permits judgment accommodating experienced sub-specialists. The assessment may require evidence of current, broad competence and of how procedures were performed. Procedure-based assessments, or reliable equivalents where PBAs were unavailable, may be required. Recent experience may receive greater weight, but historic experience must still be considered. An appellate court must respect a specialist tribunal’s evaluative judgment and should not retry the evidence.

A surgeon holding the FRCS (Trauma and Orthopaedics) applied for specialist registration through the equivalence route under the Postgraduate Medical Education and Training Order of Council 2010. The GMC rejected the application because the evidence did not demonstrate sufficient breadth, current maintenance of skills or competence across the generality of trauma and orthopaedic surgery. The Registration Appeals Panel dismissed his appeal.

On 30 May 2014, Her Honour Judge Faber allowed the county court appeal, holding that the Panel had applied the legal framework incorrectly. The GMC appealed to the Court of Appeal. The central issues were the meaning of equivalence to a CCT, the relevance of training and maintained skills, the evidence required for historic experience, and the proper scope of appellate review.

1. Disposition. The GMC’s appeal was allowed in part. The Court set aside the county court’s legal guidance in paragraphs 4 and 5 of its order, and the requirement in paragraph 2 that the matter be heard by a different panel. The remission in paragraph 1 was maintained. The case was remitted to the RAP for redetermination in light of the Court’s guidance and any new evidence.
2. Appellate review. An appeal from the RAP is not confined to questions of law, but the county court normally conducts a review rather than a rehearing under the Civil Procedure Rules 1998. On a second appeal, the question is whether the intermediate court was entitled to interfere with the specialist tribunal’s decision. An appellate court must not retry factual findings, evaluations or value judgments on the transcript. The restraint is particularly strong where the first-tier tribunal possesses specialist expertise. The Court therefore upheld the RAP’s evaluation of the evidence and its acceptance of Professor Frostick’s evidence: Procter & Gamble UK v HMRC [2009] EWCA Civ 407; McGraddie v McGraddie [2013] UKSC 58; Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642.
3. Equivalence. Article 8(2) required the Registrar to decide whether the applicant’s qualification, training, or both, coupled with relevant knowledge and experience, were equivalent in value to a CCT. The FRCS was a specialist qualification, but it was not conclusive. Training could remain relevant, and the curriculum had to be considered as a whole. Equivalence did not mean identity. It required a specialist value judgment which could accommodate an experienced practitioner whose work had become concentrated in a sub-specialty.
4. Maintenance and evidence. The Registrar and RAP were entitled to consider whether skills had been maintained. The reference to experience or knowledge wherever obtained in article 8(5) was geographical, not temporal, and did not prescribe the weight to be given to historic evidence. Recent experience could receive greater weight. Applicants had to provide evidence of competence, not merely evidence that procedures had been undertaken. PBAs, or equivalent evidence where PBAs were unavailable, could therefore be required.
5. The RAP was entitled to require evidence of broad competence, including the 14 key procedures, although continuing mastery of every procedure was not invariably essential if the overall skill set was equivalent to a CCT. The Court left undisturbed the county court’s conclusion concerning paediatric orthopaedics because the point was not specifically challenged and there was no evidence that the relevant procedures differed materially between children and adults.
6. The Court declined to direct immediate entry on the Specialist Register. That course was appropriate only where remission could realistically have produced one outcome, which was not established here: Hollingworth v Specialist Training Authority of the Medical Royal Colleges [2003] EWCA Civ 452.

• Court of Appeal (Civil Division): GMC appeal allowed in part. The remission was maintained, but the county court’s legal guidance and requirement for a different panel were set aside: [2014] EWCA Civ 1522.
• Central London Civil Justice Centre: Her Honour Judge Faber allowed the appeal from the Registration Appeals Panel on 30 May 2014 and remitted the application with directions.
• Registration Appeals Panel: Dismissed the applicant’s appeal against refusal of specialist registration.