Dr Marwa Karmakar, R (on the application of) & Anor v The Royal College of General Practitioners

This judicial review concerned the lawfulness of the Royal College of General Practitioners' policy that refused to void previous unsuccessful examination attempts or to grant further attempts where a candidate only discovered, after sitting an assessment, that they had a disability entitling them to reasonable adjustments. The court considered justiciability, delay, appropriateness of judicial review, fettering of discretion, irrationality, the public sector equality duty, the duty to make reasonable adjustments and indirect discrimination under the Equality Act 2010.

The court held that the complaints were justiciable and that judicial review was an appropriate remedy for Dr Karmakar. The claim by the British Medical Association was refused as out of time. The court found that the College had not unlawfully fettered its discretion because its powers derived from its Royal Charter and a bright-line policy was not per se unlawful, but the policy and the decision refusing a further attempt to Dr Karmakar were irrational because the College provided no coherent justification for treating candidates who only later discovered a disability less favourably than those who were known to be disabled at the time of earlier attempts.

The court rejected the College's alleged breaches of the public sector equality duty, its duty to make reasonable adjustments and the claim of indirect discrimination on the factual and legal basis advanced.

Background and parties:

• The Royal College of General Practitioners (RCGP) requires candidates to pass three assessments to qualify for membership. At the time in issue the RCGP permitted four attempts at the AKT and RCA, with a narrow exceptional fifth attempt for additional educational attainment, and the RCGP policy stated it would not void earlier attempts where a candidate subsequently received a diagnosis entitling them to reasonable adjustments.
• Two separate claims were brought: (1) by Dr Marwa Karmakar challenging the RCGP's refusal dated 11 January 2023 to grant a further attempt at the Applied Knowledge Test (AKT) or to void earlier attempts after a late diagnosis of neurodiversity; and (2) by the British Medical Association (BMA) challenging the policy more generally. The claims were heard together.

Procedural posture:

• Leave to apply for judicial review had been given to Dr Karmakar. The BMA's earlier application for permission was refused on paper; a renewed rolled-up hearing was ordered but the High Court ultimately refused to grant the BMA permission because it was out of time.

Relief sought:

• The Claimants sought judicial review of the College's policy refusing to void prior unsuccessful attempts or permit further attempts after late discovery of disability; Dr Karmakar sought quashing of the decision dated 11 January 2023 and relief in respect of her own situation.

Issues framed by the court:

1. Whether the matters were non-justiciable academic judgments.
2. Whether the claims should be dismissed for delay.
3. Whether judicial review was the appropriate remedy rather than Employment Tribunal or other proceedings in relation to Equality Act claims.
4. Whether the College unlawfully fettered its discretion.
5. Whether the policy and the decision in Dr Karmakar’s case were irrational.
6. Whether the College breached the public sector equality duty.
7. Whether the College breached its duty to make reasonable adjustments.
8. Whether the policy amounted to indirect discrimination.

Court’s reasoning and conclusions:

• Justiciability: The court rejected the argument that the dispute was an academic judgment immune from review, because the College provided no academic evidence or explanation justifying its bright-line approach.
• Delay: The court held Dr Karmakar’s claim was in time and, even if arguable otherwise, would have extended time; by contrast, the BMA's abstract challenge was out of time and time was not extended.
• Appropriate forum: Judicial review was an appropriate and effective forum for Dr Karmakar’s case; the BMA as a representative body could not, in effect, rely on Equality Act remedies available to individuals in the Employment Tribunal.
• Fettering: The court found no unlawful fettering; the RCGP’s powers stemmed from its Royal Charter and it could lawfully adopt bright-line criteria, subject to review for rationality and compliance with equality obligations.
• Rationality: The RCGP failed to provide a coherent justification for refusing to void or otherwise remedy prior attempts after a late diagnosis. The court concluded that the policy and the decision affecting Dr Karmakar were irrational because they treated disabled candidates differently depending only on the timing of diagnosis and lacked reasoned basis.
• Equality Act grounds: The court rejected PSED and reasonable adjustment claims on the facts and law advanced, concluding the particular formulation of the provision, criterion or practice advanced could not found the s.20 reasonable adjustment claim or the s.19 indirect discrimination claim, and in any event the College had properly considered equality matters generally.

Disposition:

• The court quashed the RCGP decision of 11 January 2023 and quashed the rule as it related to the AKT. The court refused the BMA permission to apply. The judge indicated further submissions would be heard on precise terms of relief, with a preliminary view that any quashing should be prospective.

First instance: The court allowed the claim by Dr Karmakar and quashed the RCGP decision dated 11 January 2023 and quashed the RCGP rule insofar as it applied to the AKT, on the ground that the policy and its application to Dr Karmakar were irrational. The BMA's abstract challenge was refused as out of time. The court rejected arguments that the College unlawfully fettered its discretion and rejected the Equality Act (public sector equality duty, reasonable adjustments and indirect discrimination) grounds advanced.