R (Patel) V General Medical Council (2013) 1 WLR 2801

2801
[2013] 1 WLR R (Patel) v General Medical Council (CA)
A Court of Appeal
*Regina (Patel) v General Medical Council

[2013] EWCA Civ 327
2013 Feb 26, 27; Lord Dyson MR, Lloyd, Lloyd Jones LJJ
B March 27
Medical practitioner Registration Legitimate expectation Application for

provisional registration as doctor by British resident with overseas qualication
Claimant having obtained assurance from General Medical Council of
acceptability of qualication from particular overseas university before starting
medical course by distance learning Criteria for acceptable overseas
C qualications revised during period of study with no transitional provisions
for students already taking courses Claimant refused registration on
completion of qualication Whether claimant having legitimate expectation
of registration Whether entitled to be registered notwithstanding inability to
satisfy current criteria Medical Act 1983 (c 54), ss 21B, 21C (as inserted by
Medical Act 1983 (Amendment) and Miscellaneous Amendments Order 2006
(SI 2006/1914), art 35(2) and amended by European Qualications (Health and
Social Care Professions) Regulations 2007 (SI 2007/3101), regs 16, 17)
D
The claimant, who was resident in the United Kingdom, determined in 2004 at
the age of 46 to train as a doctor with the intention of practising medicine in this
country. Having decided to complete his pre-clinical studies by distance learning in
order to continue in business as a pharmacist, he found a degree course o›ered by
an international university in the West Indies, which was at that time an acceptable
overseas qualication for the purpose of provisional registration with the General
E
Medical Council (GMC), the body responsible for registering and regulating
doctors in the United Kingdom. Without such registration the claimant would be
unable to practise as a doctor in the United Kingdom in accordance with the
Medical Act 1983, as amended1. In an e-mail correspondence with the GMC the
claimant asked specically whether, if he completed the pre-clinical course by
distance learning at the university in question and clinical rotations in the United
F Kingdom, that would be acceptable to the GMC for the purpose of provisional
registration. The nal response from the GMC stated that it accepts the primary
medical degree awarded from [that university] for the purpose of registration.
Having received that reply the claimant enrolled on the chosen course, undertook
his studies and clinical rotations from 2005 to 2011 and obtained a degree with
distinction. He requested a provisional registration so that he could proceed to the
next stage in order to achieve full registration. The GMC then informed him that
G his primary medical qualication was not at that time acceptable to the GMC,
because the requirements for an acceptable overseas medical qualication had been
changed in 2006 and 2010. He was refused provisional registration. There was no
statutory right of appeal from that decision. The claimant sought judicial review of
the GMCs refusal to register him, on the grounds, inter alia, that the GMC had
unlawfully fettered its discretion in dening acceptable medical qualication by
reference to criteria which admitted of no exceptions, and that the retrospective
H change was irrational and/or arbitrary and frustrated a legitimate expectation that
the claimants primary medical qualication would be accepted. The judge
dismissed the claim.
1
Medical Act 1983, s 21B, as inserted and amended: see post, paras 3, 4.
S 21C(2), as inserted and amended: see post, para 5.
' 2013 The Incorporated Council of Law Reporting for England and Wales
2802
R (Patel) v General Medical Council (CA) [2013] 1 WLR
On the claimants appeal A

Held, (1) that in relation to the registration of doctors with overseas
qualications, sections 21B(1) and 21C(2) of the Medical Act 1983 conferred a
discretion on the General Medical Council only if the criteria for registration of an
acceptable overseas qualication were rst satised; that that discretion was to refuse
registration notwithstanding that those criteria were satised, not to grant it where
they were not; that, in accordance with the intention of Parliament, the GMC had to
set minimum criteria for an applicant to meet before he could be registered and, since B
that was what the GMC had done in determining those overseas qualications which
were acceptable for the purpose of registration, it had not unlawfully fettered its
discretion; that, having regard to the absence of any universally recognised standards
for primary medical qualications, the impracticability of the GMC assessing or
verifying the many primary medical qualications issued around the world and the
concerns which had led to the changes being made, it had not been irrational for the
GMC to introduce the changes to the criteria for an acceptable overseas qualication; C
and that the right to peaceful enjoyment of a persons possessions guaranteed by
article 1 of the First Protocol to the Convention for the Protection of Human Rights
and Fundamental Freedoms was not engaged and therefore no issue as to
proportionality arose (post, paras 31—34, 36, 37, 93, 94, 95).
But (2), allowing the appeal, that for the claimant to establish a substantive
legitimate expectation that his primary medical qualication once awarded would be
an acceptable overseas qualication for the purpose of provisional registration by
D
the GMC, he had to show that the representation or statement made by the GMC in
the e-mail correspondence was clear, unambiguous and unqualied, that he had fully
explained his intentions to the GMC at the time the representation was made and that
he had received from the GMC a specic undertaking that his qualication would be
acceptable; that, in order to determine whether the statement made by the GMC had
given the claimant an assurance that his qualication would be acceptable for
provisional registration if he completed the course within a reasonable time, the
question was how, on a fair reading of the statement, it would have been reasonably E
understood by the claimant to whom it had been made; that, in the context of the
repeated requests for clarication by the claimant as to whether the particular
overseas course which he proposed to take by distance learning would be acceptable
to the defendant, the statement made by the GMC in the nal e-mail had given the
claimant a clear, unequivocal and unqualied assurance that if he completed the
proposed course in a reasonable time the qualication would be recognised by
the GMC; that the statutory scheme of the Medical Act 1983 did not exclude the F
operation of the principle of legitimate expectation in the particular circumstances of
the claimants case; that the statutory duty had to be exercised in accordance with
established principles of substantive fairness and, although those principles
necessarily took account of the statutory duty and did not invariably lead to e›ect
being given to the legitimate expectation, on the facts there was no incompatibility
between the principle of legitimate expectation and the statutory duty; that, although
in carrying out its responsibility to decide which qualications granted outside the G
United Kingdom it would from time to time accept the GMC had been entitled to
adopt new criteria in 2006 and 2010, the burden was on the GMC to prove that there
was a su–cient public interest to justify changing the rules so as to deny recognition to
qualications obtained after a course of study with a substantial distance learning
element without making transitional provisions for the claimant who had received an
assurance that his qualication would be recognised; that it was for the court,
applying an objective standard of fairness, to decide whether there was a su–cient H
overriding interest to justify a departure from what had previously been planned by
weighing up the competing interests; that due weight was to be given to the fact that
the GMC was an expert professional body charged by Parliament with the specic
function of deciding which overseas medical qualications should be recognised,
acting to protect the health and safety of the public; that the fact that when the
2803
A decisions to change the rules had been made in 2006 and 2010 no consideration had
been given to whether it was necessary to introduce the new rules with immediate
e›ect or the consequences of doing so, was su–cient to require the decision to apply
the rules to the claimant to be quashed; that in the circumstances it was not open to the
GMC to change its policy without adopting some transitional provisions to cater for
the claimant, there being no su–cient public interest which outweighed the unfairness
to the claimant of refusing to honour the assurance given; and that, accordingly, the
B claimant was entitled to a declaration that the defendant be compelled to recognise his
primary medical qualication for the purposes of registration under the Medical Act
1983 (post, paras 40—41, 43—48, 55, 56, 59—62, 75, 81, 83—85, 91, 93, 94, 95).
R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR
1545, DC, R v North and East Devon Health Authority, Ex p Coughlan [2001] QB
213, CA, R (Association of British Civilian Internees: Far East Region) v Secretary of
State for Defence [2003] QB 1397, CA and R (Bhatt Murphy) v Independent
Assessor [2008] EWCA Civ 755, CA applied.
C
Decision of Hickinbottom J [2012] EWHC 2120 (Admin); 128 BMLR 146
reversed.
The following cases are referred to in the judgment of Lloyd Jones LJ:
Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223;
[1947] 2 All ER 680, CA
D Belgian Linguistic Case (No 2) (1968) 1 EHRR 252
British Oxygen Co Ltd v Board of Trade [1971] AC 610; [1970] 3 WLR 488; [1970]
3 All ER 165, HL(E)
Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32; [2012] 1 AC
1; [2011] 3 WLR 219, PC
R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR
1545; [1990] 1 All ER 91, DC
R v Inland Revenue Comrs, Ex p Unilever plc [1996] STC 681, CA
E
R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213; [2000]
2 WLR 622; [2000] 3 All ER 850, CA
R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR
1115, CA
R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696; [1991]
2 WLR 588; [1991] 1 All ER 720, HL(E)
R v Specialist Training Authority of the Medical Royal Colleges, Ex p British Medical
F Association (1998) 47 BMLR 95
R (Association of British Civilian Internees: Far East Region) v Secretary of State for
Defence [2003] EWCA Civ 473; [2003] QB 1397; [2003] 3 WLR 80, CA
R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, CA
R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607; [2002] 1 WLR
237, CA
R (Sivills) v General Social Care Council [2007] EWHC 2576 (Admin)
G
The following additional cases were cited in argument:
R (Dudley Metropolitan Borough Council) v Secretary of State for Communities and
Local Government [2012] EWHC 1729 (Admin); [2013] LGR 68
R (HSMP Forum Ltd) v Secretary of State for the Home Department [2008] EWHC
664 (Admin); [2008] INLR 262
H The following additional cases, although not cited, were referred to in the skeleton
arguments:
R v Devon County Council, Ex p Baker [1995] 1 All ER 73, CA
R v Ministry of Agriculture, Fisheries and Food, Ex p Hamble (O›shore) Fisheries
Ltd [1995] 2 All ER 714
2804
R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539; [1997] A
3 WLR 492; [1997] 3 All ER 577, HL(E)
R v Secretary of State for the Home Department, Ex p Venables [1998] AC 407;
[1997] 3 WLR 23; [1997] 3 All ER 97, HL(E)
R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre
intervening) [2010] EWCA Civ 1482; [2011] 3 All ER 81, CA; [2011] UKSC 45;
[2012] 1 AC 621; [2011] 3 WLR 836; [2012] 1 All ER 1011, SC(E)
R (Alconbury Developments Ltd) v Secretary of State for the Environment, B
Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295; [2001] 2 WLR
1389; [2001] 2 All ER 929, HL(E)
R (Amraf Training plc) v Secretary of State for Education and Employment [2001]
ELR 125
R (Animal Defenders International) v Secretary of State for Culture, Media and Sport
[2008] UKHL 15; [2008] AC 1312; [2008] 2 WLR 781; [2008] 3 All ER 193, HL(E)
R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] C
2 AC 532; [2001] 2 WLR 1622; [2001] 3 All ER 433, HL(E)
R (Godfrey) v Southwark London Borough Council [2012] EWCA Civ 500; [2012]
LGR 683, CA
R (Licheld Securities Ltd) v Licheld District Council [2001] EWCA Civ 304;
[2001] 3 PLR 33, CA
R (Luton Borough Council) v Secretary of State for Education [2011] EWHC 217
(Admin); [2011] ELR 222 D
R (Nicholds) v Security Industry Authority [2006] EWHC 1792 (Admin); [2007]
1 WLR 2067; [2007] ICR 1076
Runa Begum v Tower Hamlets London Borough Council (First Secretary of State
intervening) [2003] UKHL 5; [2003] 2 AC 430; [2003] 2 WLR 388; [2003] 1 All
ER 731, HL(E)
APPEAL from Hickinbottom J E

By a claim form issued on 13 February 2012 the claimant, Sailesh Patel,
sought judicial review of the decision of the defendant, the General Medical
Council (GMC), communicated by e-mails on 14 November 2011 and
13 December 2011, that the claimants primary medical qualication from
the International University of Health Sciences, St Kitts and Nevis did not
meet the GMCs criteria and therefore could not be considered acceptable
for the purpose of sitting the Professional and Linguists Assessment Board F
(PLAB) test or applying for registration by the GMC. The main grounds
of challenge to the decision were that (1) the criteria promulgated by the
GMC in respect of what was for the time being an acceptable overseas
qualication under section 21B of the Medical Act 1983, and which did not
permit of exception, were irrational and unlawful, and (2) the GMCs
assurances, and the claimants reliance on those, had created a substantive G
legitimate expectation which rendered the GMCs refusal to accept the
claimants qualication unlawful. On 26 July 2012 Hickinbottom J
dismissed the claim (2012) 128 BMLR 146.
By an appellants notice led on 31 August 2012 and pursuant to
permission granted by the Court of Appeal (Sedley LJ) on 23 October 2012,
the claimant appealed on the grounds, inter alia, that the judge had erred
H
in (1) failing to consider the representations made to the claimant by the
GMC in their context, the particular circumstances of which engendered a
substantive and/or procedural legitimate expectation that the claimants
qualication would be accepted; (2) nding that the e-mails between the
claimant and the GMC from 5 to 16 November 2004 were only
2805
Lloyd Jones LJ
A representations as to the present as opposed to the future; (3) holding that it

was not unlawful for the GMC to fail to introduce any transitional
provisions, exceptions clause or residual discretion in respect of persons who
had commenced courses which (at the time the course had been commenced)
had been on the list of possible acceptable qualications and who had relied
on that information continuing to apply when the course was completed,
B
there being no su–cient public interest which outweighed the unfairness to
the claimant (and those in a similar position) in refusing to consider his
application individually; (4) holding that the retrospective change in
requirement was not irrational or arbitrary; and (5) holding that the blanket
rule was not disproportionate.
The facts are stated in the judgment of Lloyd Jones LJ.
C Richard Drabble QC and Kate Beattie (instructed by Neumans LLP) for

the claimant.
Eleanor Grey QC (instructed by General Medical Department,
Manchester) for the General Medical Council.
The court took time for consideration.

D 27 March 2013. The following judgments were handed down.
LLOYD JONES LJ
1 This is an appeal by the claimant, Dr Sailesh Patel against the order of
Hickinbottom J dismissing his application for judicial review of the decision
of the defendant, the General Medical Council (GMC) to refuse to accept
his primary medical qualication obtained from the International University
E
of Health Sciences, St Kitts and Nevis (IUHS) as an acceptable overseas
qualication pursuant to section 21C of the Medical Act 1983. The e›ect of
this refusal has been that the claimant has not been permitted to progress
his application for registration with the General Medical Council. As a
consequence he has been unable to take a competency and linguists
examinations set by the Professional and Linguists Assessment Board
F (PLAB) or undertake a placement in a National Health Service hospital for
foundation year 1.
The regulatory framework

2 Under the Medical Act 1983 the GMC is charged with the
responsibility for registering and regulating doctors within the United
G Kingdom pursuant to its primary purpose to protect, promote and
maintain the health and safety of the public: see section 1(1A) as inserted by
article 3 of the Medical Act 1983 (Amendment) Order 2002 (SI 2002/3135).
Section 2 requires the registrar of the GMC to keep a register of medical
practitioners. All medical practitioners are required to be registered with
full or provisional registration. Provisional registration enables a doctor to
practise under supervision and only as part of an acceptable programme
H
designed to show that he possesses the knowledge, skills and experience
necessary for practising as a fully registered medical practitioner.
3 Sections 21B and 21C, introduced by article 35(2) of the Medical Act
1983 (Amendment) and Miscellaneous Amendments Order 2006 and
amended by regulations 16 and 17 of the European Qualications (Health
2806
Lloyd Jones LJ
and Social Care Professions) Regulations 2007, make provision for the A
registration of doctors who have overseas qualications. Section 21B(1)
concerns registration as a fully registered medical practitioner. It provides:
Where a person satises the registrar (a) that he holds, or has
passed all the qualifying examinations necessary for obtaining, an
acceptable overseas qualication; (b) that he possesses the knowledge,
skills and experience necessary for practising as a fully registered medical B
practitioner in the United Kingdom; (c) that his tness to practise is not
impaired; (d) unless he is an exempt person, that he has the necessary
knowledge of English, and (e) that, where (i) the person is an exempt
person, (ii) his acceptable overseas qualication was, or would have been,
granted otherwise than in a relevant European state, and (iii) that
qualication, or the persons having passed those examinations, has not
C
previously been accepted by a relevant European state as qualifying the
person to practise as a medical practitioner in that state, that qualication
is, or would have been, evidence of medical training which satises
the [basic medical training] requirements of [the relevant European
Directive], that person shall, if the General Council think t so to direct,
be registered under this section as a fully registered medical practitioner.
D
4 The denition of acceptable overseas qualication was originally
provided by section 22(4):
In this Act an acceptable overseas qualication means any
qualication granted outside the United Kingdom and for the time being
accepted by the General Council for the purposes of this section as
furnishing a su–cient guarantee of the possession of the knowledge and
E
skills requisite for the practice of medicine under the supervision of a
person who is registered as a fully registered medical practitioner.
However, the 2006 Order substituted a new denition in section 21B(2):
In this Act, an acceptable overseas qualication means any
qualication granted outside the United Kingdom, where that
qualication is for the time being accepted by the General Council F
as qualifying a person to practise as a medical practitioner in the
United Kingdom.
5 Section 21C concerns provisional registration of doctors with an
overseas qualication. Section 21C(2) provides:
A person who satises the registrar (a) of the matters specied in
G
paragraphs (a), (c), (d) and (e) of subsection (1) of 21B above so far as
they are matters of which the Registrar would in the persons case have to
be satised in order for the person to be eligible to benet from a direction
under that subsection; and (b) that he possesses the knowledge and skill
requisite for embarking upon an acceptable programme for provisionally
registered doctors, may apply to the General Council to be provisionally
registered under this section and, if the Council think t so to direct, that H
person shall be so registered.
6 Where an application for registration is refused by the registrar, there
is a right of appeal to the Registration Appeals Panel, a statutory committee
of the GMC.
2807
Lloyd Jones LJ
A 7 There are no universally accepted criteria for accreditation of medical

schools or primary medical qualications. Prior to 1995, the GMC
maintained its own list of approved qualications. However, in October
1995 the registration committee concluded that it could not continue to
maintain the list because of the practical di–culties of assessing or verifying
primary medical qualications available around the world. In its place the
committee used a list of qualications published in the World Health
B
Organisation (WHO) Directory, which it accepted as acceptable overseas
qualications without any further assessment.
8 In 2005 investigative journalism by the BBC identied some serious
abuses although, I emphasise, none involved IUHS. The registration
committee found that a number of UK based private medical schools
claimed a–liations to universities listed in the WHO Directory when in fact
C they had no such links at all. Some qualications were awarded by
universities which had no physical address identied in the WHO Directory.
Furthermore, the registration committee was concerned that some
qualications granted by medical schools which appeared in the WHO
Directory were awarded following a course of study which was undertaken
wholly or substantially in another jurisdiction, or with substantially less
than the 5,500 hours or six years usual for primary medical qualications
D
obtained in the United Kingdom or which was pursued by way of
correspondence courses or distance learning undertaken without face to
face teaching.
9 At its meeting of 13 June 2006 the registration committee concluded
that there was no suitable alternative to continuing to use the WHO
Directory. However, it decided to revise the criteria for an acceptable
E overseas qualication. The new criteria are set out in the minutes:
15. The committee therefore agreed a revised denition of an
acceptable primary medical qualication, as one which: (a) has been
awarded by an institution which is listed in the WHO Directory or
otherwise accepted by the GMC. (b) Has been awarded by an institution
which has a physical address included in the WHO Directory. (c) Has
F been awarded after a course of study comprising at least 5,500 hours (or
four years full time equivalent study). (d) Has not involved a course of
study undertaken wholly or substantially outside the country that
awarded the [primary medical qualication]. (e) Has not involved
following a course of study undertaken wholly or substantially by
correspondence.
16. The committee noted that an application which does not comply
G
with the requirement of paragraph 15(a) would be refused on the
grounds that it is not an acceptable qualication. An application which
complied with paragraph 15(a), but lacked compliance with one or
more of the requirements at paragraphs 15(b)—(e), would be subject to
further review. The o–ce was asked to clarify the position in relation
to this process.
H
10 In the years that followed the GMC encountered two di–culties
with the 2006 criteria. First, the requirement that the relevant course must
not be wholly or substantially undertaken outside the country of the
award or by correspondence lacked certainty. Secondly, while the registrar
took the view that each of the criteria set out in sub-paragraphs 15(a)—(e)
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Lloyd Jones LJ
was a precondition of acceptance of a qualication, in three appeals the A

Registration Appeals Panel concluded that only the requirement in 15(a)
was mandatory and that the reference in paragraph 16 to further review
gave it a discretion to look at the merits of the application on a case by
case basis. As a result it allowed three appeals and permitted doctors to
be registered despite the fact that they had not satised one or more of
the criteria set out in paragraphs 15(b)—(e). However, the GMC has B
maintained throughout and still maintains there was no such discretion
under the 2006 criteria.
11 Accordingly on 13 July 2010 the GMC again revised its criteria
for acceptable overseas qualications. On this occasion the reference
directory was changed from the WHO Directory to the Avicenna
Directory. In addition, the requirements that the qualication had not
involved a course of study undertaken wholly or substantially outside C
the country that awarded it or had not followed a course of study
undertaken wholly or substantially by correspondence were replaced
by new criteria (e) and (f ):
(e) It must not have involved a programme of study where more than
50% of that study (compared to the standard duration of the
qualication) has been undertaken outside the country that awarded D
the qualication.
(f ) It must not have involved following a programme of study where
more than 25% of that study (compared to the standard duration of the
qualication calculated using total hours of study) has been undertaken
by distance learning. Distance learning will include learning by
correspondence, using the Internet or on-line learning methods, E
self-directed learning and any training or learning which is undertaken
other than on a face to face basis.
Furthermore, a new criterion (g) provided: Where the qualication held by
an applicant fails to satisfy any one or more of the above criteria that
application must be refused (on the grounds that the applicant does not hold
an acceptable overseas qualication). F
12 The 2010 criteria have been applied since 2010. Under these
criteria, where a particular qualication does not satisfy criterion (e) or
(f ) then, pursuant to criterion (g), registration has been automatically
refused on the ground that the applicant does not hold an acceptable
overseas qualication.
G
The claimant
13 The claimant is now 54 years of age. He holds a British passport and
has resided in the United Kingdom since 1969. He is a qualied pharmacist.
After obtaining his BSc in pharmacy from the City of Leicester Polytechnic,
he worked as a pharmacist manager at Boots the Chemist from 1980 to
1983. He then started his own independent pharmacy business of which he
H
is still a director and managed and provided pharmacy services at three
pharmacies in Surrey.
14 In 2004 the claimant, who was then 46 years of age, decided that he
wanted to full a long-standing ambition to qualify as a doctor with a view
to practising medicine in the United Kingdom. He wanted to complete his
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Lloyd Jones LJ
A pre-clinical studies on a part-time basis because he was still carrying on his

business as a pharmacist. However, he understood that he would have to
devote himself full time to those periods when he was undertaking clinical
rotations. His plan was to study on a suitable distance learning course,
but to carry out the clinical rotations element in the United Kingdom.
He identied an MBBS (Bachelor of Medicine, Bachelor of Surgery) course
B
o›ered by the IUHS, an institution listed in the WHO Directory (and now
listed in the Avicenna Directory). The course involved 160 weeks of study
divided into ten equal blocks. At the conclusion of each block each
candidate had to pass an examination before proceeding to the next block.
At the end of the entire period of study, each candidate was required to pass
both an IUHS internal exit examination and the US medical licensing
examination step 1, before proceeding to the clinical stage. The clinical
C training comprised 80 weeks with core rotations undertaken for 48 weeks
and elective rotations for 32 weeks. At the end of that clinical training IUHS
required students to pass the US medical licensing examination step 2
(clinical knowledge) before being awarded the degree.
15 Undertaking such a course was, inevitably, a major commitment for
the claimant. As a result, he decided to contact the GMC for information
D about the suitability for his purpose of his proposed course. There followed,
in November 2004 i e before the introduction of the 2006 criteria, e-mail
correspondence between the claimant and the Registration and Education
Directorate of the GMC which has an important bearing on this case and
which therefore requires to be set out in full. (The references in the
correspondence to the London College of Medicine are to a private medical
college in the United Kingdom which was a–liated to the IUHS. The
E claimants initial plan was to obtain an IUHS degree by applying to the
London College of Medicine. However, the correspondence moves on to
address the suitability of the medical course o›ered by the IUHS in St Kitts.
The possibility of obtaining such a qualication through the London College
of Medicine was not pursued by the claimant.)
16 On 5 November 2004 the claimant e-mailed the GMC in the
F following terms:
I am thinking of applying to LONDON COLLEGE OF MEDICINE,
who is an a–liate of the IUHS University in St Kitts in the West Indies.
I gather that IUHS is recognised by WHO and therefore by extension
LCM would also be recognised. However I have several concerns
(a) Does GMC recognise the distance learning pre-clinical education
G o›ered by LCM? (b) Does GMC approve of LCMs status and its
teaching methods? (c) I understand that LCM is currently being
investigated to ascertain its standards and facilities. Can you tell me
when this is likely to be concluded? If on the other hand I apply directly
to IUHS (which is an approved medical institution also recognised in the
US and by WHO) in St Kitts, but complete the pre-clinical by distance
learning and then complete the clinical in the UK, would that be
H
acceptable to the GMC.
17 The GMC responded, by e-mail, the same day:
Thank you for your e-mail dated 5 November 2004. The London
College of Medicine is under review and within the next few months we
2810
Lloyd Jones LJ
should have a decision posted on the GMC website. We will not currently A
accept the primary medical qualications as eligibility for taking the
PLAB test. If your qualication is given by the International School of
Health Studies this accepted by the GMC.
18 The claimant sent a further e-mail on 8 November:
Thank you for your prompt reply to my e-mail of 5 November B
regarding the qualication given by IUHS medical school in St Kitts,
which you conrm the GMC recognises and accepts. However my
question was that if I apply to IUHS and complete the PRE-CLINICAL by
distance learning and then complete the CLINICAL in the UKwould
that be acceptable to the GMC?
19 The GMC replied on 9 November: C
Thank you for your reply. If you have completed the qualication but
not an internship, you can still take the PLAB test but the test is concerned
with mainly senior house o–cer levels. I hope this answers your query, if
not please reply and explain further.
20 The claimant responded the same day:
D
Further to your e-mail of 9 November, my question is that does the
GMC recognise and accept the distance learning (on-line) pre-clinical
element of the medical course o›ered by the IUHS in St Kitts?PLEASE
REPLY YES OR NO. As you are aware that the clinical part of the course
is in a UK hospital under full supervision and further IUHS is also
recognised by the GMC and WHO.
E
21 The GMC responded on 10 November:
Thank you for your e-mail dated 9 November. We have recently
had further clarication regarding the medical degrees awarded by the
London Medical College/London School of Medicine (awarded by the
IUHS). We are now accepting these degrees for the purposes of limited
registration. The medical degree awarded by IUHS is also accepted for F
the purpose of limited registration. You need to be aware that as the
GMC does not currently recognise this school, a degree from the
university will not automatically lead to registration, students will still
have to sit PLAB or full alternative criteria to be eligible for limited
registration. The school is not subject to any quality assurance or
inspection by the GMC and potential students will have to satisfy
themselves both that the schools will be awarding a degree from G
WHO-listed universities when they graduate and that they are nancially
stable institutions. If you have any further queries please contact us and
we will do our best to help.
22 The reference in the GMCs e-mail of 10 November to limited
registration is to a di›erent form of registration, which is no longer
H
available. However, the precise form of registration is of no relevance to the
present proceedings. In that e-mail the GMC made clear that the claimant
could not rely on the a–liation of the IUHS with the UK-based London
College of Medicine. However, the focus of the claimants inquiries then
shifted from that a–liation.
2811
Lloyd Jones LJ
A 23 The claimant sent a further e-mail on 14 November, headed Further

Clarication. (Medical Degree from IUHS):
Further to your e-mail of 10 November, I am confused on the GMCs
position on the degree provided by IUHS in St Kitts. I therefore have
TWO of questionsyour reply to me you state that the GMC are now
accepting the medical degree awarded from IUHS for the purpose of
B limited registration, meaning the student having to sit the PLAB exam in
order to practice in the UK under supervision. You then go on to state in
the same e-mail that GMC does NOT CURRENTLY RECOGNISE THIS
SCHOOL (IUHS)even though IUHS is listed on WHOs accredited list
of medical schools. What is the correct position of the GMC? Secondly,
if the GMC accepts the degree from IUHS, (for the purpose of limited
C
registration) therefore by implication it also accepts and recognises the
distance learning, pre-clinical element in the medical course o›ered by
IUHS. Is my understanding of the situation correct?
24 The nal response from the GMC was on 16 November 2004
Thank you for your reply. The General Medical Council accepts the
primary medical degree awarded from International University of Health,
D St Kitts for the purpose of registration, this entitles the student to sit the
PLAB exam in order to by [sic] eligible for registration in the UK.
The claimant relies primarily on this statement by the GMC to found his
case on legitimate expectation.
25 Thereafter, the claimant enrolled on the MBBS course at the IUHS.
He undertook these studies between 2005 and 2011. His pre-clinical
E studies were by distance learning, although he spent two months studying
in St Kitts in late 2006. Having successfully passed the relevant
examinations, he then completed his supervised clinical rotations at a
number of hospitals in London, Surrey and Sussex. He passed all his
rotations, achieving honours in 13 of the 19 rotations. He completed his
MBBS in July 2011 obtaining a distinction. This course clearly represented
F a huge investment of time and money by the claimant. He estimates that
his total expenditure on pre-clinical studies, clinical rotations, books, travel
and accommodation on his trip to IUHS and examination fees amounted to
over US$40,000.
26 Having obtained his MBBS, the claimant wished to proceed to the
next stage, a foundation programme doctors post which he wished to take
up at a hospital in the United Kingdom in August 2012. Because he was
G relying on an overseas primary medical qualication, he needed to take and
pass the PLAB examination. He also needed to obtain provisional
registration with the GMC and so he contacted the GMC.
27 On 14 November 2011 the GMC responded to his inquiry.
In an e-mail Ms Jennifer Cooper, investigation and intelligence o–cer at
the Registration Directorate of the GMC set out the 2010 criteria and
H continued:
Having considered the information provided to us, it appears your
primary medical qualication is not currently acceptable to the GMC.
This is because: point 5 of the criteria [i e paragraph (e)] requires that at
least 50% of the standard course of study is undertaken in the country that
2812
Lloyd Jones LJ
awards the qualication. The standard course of study at IUHS is A

4 years/160 weeks. As you completed only one module (block 9 from
21 October 2006 to 14 December 2006) which equates to just under
eight weeks of study in St Kitts and Nevis, your primary qualication does
not meet the criteria and therefore cannot be considered acceptable for
the purpose of sitting the PLAB test or applying for GMC registration.
That decision to refuse to accept the claimants primary medical B
qualication as an acceptable overseas qualication is the decision
challenged in these proceedings.
28 A further e-mail dated 13 December 2011 sent to the claimant by
Miss Conway, head of registration, investigation and intelligence at the
GMC, stated:
Criterion 5 [i e criterion (e)] says that a qualication must not have C
involved a programme of study when more than 50% of that study
(compared to the standard duration of the qualication) has been
undertaken outside the country that awarded the qualication.
I understand that your primary qualication was awarded by [IUHS] in
St Kitts. The Dean of Academic A›airs has conrmed to us that the
normal duration of the programme you undertook is 160 weeks, and that D
all of your studies were undertaken outside St Kitts, apart from a period
of a little under eight weeks, between 21 October 2006 and 14 December
2006. I am afraid it is therefore clear that your qualication is
unacceptable for the purposes of registration in the UK. I realise that this
is very disappointing news. The Medical Act 1983 does not provide a
statutory right of appeal in these circumstances. I hope I can explain why.
By law, it is our General Council that decides which overseas E
qualications are acceptable for the purposes of registration in the UK;
and it has discharged that function by agreeing criteria that all such
qualications must meet. The current criteria were agreed by the Council
in July last year, and published on our website in September 2010.
However, the criteria that they replaced (which were not fundamentally
di›erent) had been in place since October 2006. This is not, therefore, a F
case where we have made a decision on your eligibility for registration.
All we have done is respond to your inquiries and, in doing so, draw your
attention to the fact that your qualication does not meet the General
Councils published requirements. This is something that any internal
medical graduate may establish for themselves by referring to the criteria
on our website. I am sorry that I cannot be more helpful. I hope I have at
G
least claried matters.
The appeal
29 The grounds of appeal advanced by Mr Drabble QC on behalf of the
claimant fall into two categories. (1) Challenges to the new criteria adopted
in 2006 and 2010. (2) Challenges founded on legitimate expectation. At the
H
hearing it became clear that the real substance of this appeal lies in the claim
based on legitimate expectation. Accordingly I propose to deal relatively
briey with the challenges to the new criteria. However, it is appropriate to
address them rst because they provide part of the context of the case on
legitimate expectation.
2813
Lloyd Jones LJ
A (1) Challenges to the new criteria

Unlawful fettering of discretion
30 Mr Drabble submits that the court below was in error in nding that
the GMC had not unlawfully fettered its discretion in dening acceptable
overseas qualication by reference to criteria that do not allow of
exceptions.
B 31 First, Mr Drabble submits that the words if the Council think t so
to direct in sections 21B(1) and 21C(2) confer on the GMC a general
discretion to consider exceptional cases. The judge rejected this submission
in the following terms, at (2012) 128 BMLR 146, para 44:
Neither section 21B(1) nor section 21C(2) gives the GMC a discretion
to allow registration where a person does not satisfy the registrar in
C respect of the specied criteria: rather, they provide that, even where a
person satises the registrar with regard to all of the specied criteria to
the registrars satisfaction, the GMC retain the discretion to direct that
that person shall not be registered. That is a true discretion, required to
be exercised on the basis of public law principles. However, for the
discretion inherent in the emphasised words to arise at all, the registrar
D must rst be satised as to each of the statutory criteria set out . . .
including, in each case, that the applicant has an acceptable overseas
qualication. The words brook no other construction.
I entirely agree with the judge. The words relied on confer a discretion only
if the criteria are rst satised and, furthermore, are in that event limited to a
discretion to refuse registration. That conclusion ows inevitably from the
E structure of the statutory provisions.
32 Secondly, Mr Drabble submits that the GMC has fettered its
discretion to consider the claimants individual case, notwithstanding that
he was able to put forward exceptional circumstances which deserved
individual consideration. Here Mr Drabble refers to the well known
passage in the speech of Lord Reid in British Oxygen Co Ltd v Board of
Trade [1971] AC 610, 625 and other authority to similar e›ect. The judge
F rejected this submission. He considered, at para 51, that the requirement
for an applicant to hold an acceptable overseas qualication is a separate
requirement from that that he possesses the knowledge and skill requisite
for embarking upon an acceptable programme for provisionally registered
doctors. In the judges view Parliament clearly intended the GMC, as an
expert body, to exercise its own judgement as to what qualications are
G adequate for these purposes. The exercise of that judgment would
be subject to the bounds of Wednesbury reasonableness (Associated
Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223)
but the judge considered that those boundaries would be wide in the
circumstances of the present case. He concluded that the intention of
Parliament was to require the GMC to identify qualications acceptable to
it that would be a condition of an applicant progressing to be registered
H
and to take the PLAB test. In his view that intention is not defeated,
but satised, by the identication of criteria that any primary medical
qualication must satisfy.
33 I agree that it was the intention of Parliament that the GMC should
set minimum criteria which an applicant must meet before he can be
2814
Lloyd Jones LJ
registered and that that is what the GMC has done. I also agree with the A
judge that there is a striking similarity between the position here and that in
R v Specialist Training Authority of the Medical Royal Colleges, Ex p British
Medical Association (1998) 47 BMLR 95, where Dyson J held that the
Specialist Training Authority was entitled to specify certain minimum
criteria which had to be satised by every applicant.
34 Accordingly I do not consider that there was any unlawful fettering B
of discretion by the GMC.
Irrationality
35 Mr Drabble submits that the judge erred in holding that the
retrospective change in requirement was not irrational or arbitrary.
He submits that the broad statutory purpose in section 1(1A) of the Act
C
which underpins the grant of discretionary power to the GMC does not
require, still less encourage, the imposition of blanket criteria. He submits
that a blanket policy which excludes high quality candidates who, on the
objective evidence, clearly possess the knowledge and skill requisite for
practising medicine under supervision, must be contrary to the purpose of
the Act and/or irrational.
36 In approaching this issue the judge emphasised that the rationality D
of this requirement must be seen in its context which includes the absence
of any universally recognised standards for primary medical qualications
and the intention of Parliament that the GMC must identify the criteria by
which a primary medical qualication will be acceptable. He considered
that the change in criteria reected the broad concerns identied in the
GMC paper of 6 June 2006 and the registration committees wish to see a
E
requirement of greater association between students, the educational
establishment and the degree course, concerns that were carried through to
the 2010 deliberations. He also drew attention to the impracticability of
the GMC assessing or verifying the many primary medical qualications
issued around the world. He concluded at 128 BMLR 146, para 64 that,
when considered in this context, it was not irrational for the GMC to
insist on a requirement that goes to ensure to a signicant degree that the F
awarding institution has a proper degree of control and supervision
over the period of study looked at as a whole. I agree with the judges
reasoning and conclusion.
37 The judge went on to conclude that the new criteria were not
rendered irrational by the lack of any transitional provisions. For my part,
I accept that in principle the GMC would be entitled to change the criteria G
with immediate e›ect if it was satised on reasonable grounds that it was
necessary to bring in the necessary changes with such immediacy. However,
it will be necessary to examine later in this judgment the decision making
process which actually occurred in this case.
Proportionality
H
38 Mr Drabble submits that article 2 of the First Protocol to the
Convention for the Protection of Human Rights and Fundamental Freedoms
as scheduled to the Human Rights At 1998 is engaged in this case because
the decision to refuse recognition to the claimants qualication denies him
the right to draw prot from the education he has obtained. Mr Drabble
2815
Lloyd Jones LJ
A then goes on to submit that the imposition of a blanket rule, admitting no

exception, is not necessary to achieve the aims identied by the GMC and is
not objectively justied. For present purposes it is su–cient to state that
I agree with the judge that article 2 of the First Protocol is not engaged in
these circumstances (see Belgian Linguistic Case (No 2) (1968) 1 EHRR
252; R (Sivills) v General Social Care Council [2007] EWHC 2576 (Admin),
B
Jackson J) and that therefore resort to principles of proportionality is not
appropriate: R v Secretary of State for the Home Department, Ex p Brind
[1991] 1 AC 696.
(2) Legitimate expectation

39 The claimants case on legitimate expectation is founded primarily
on the sequence of e-mails set out earlier in this judgment and, in particular
C
the GMCs nal response of 16 November 2004. In the alternative, he relies
on statements made by the GMC in its website about recognition of overseas
degrees.
A clear, unambiguous and unqualied statement

40 Before a statement or representation can be relied upon as giving rise
D to a legitimate expectation it must be clear, unambiguous and devoid of
relevant qualication: R v Inland Revenue Comrs, Ex p MFK Underwriting
Agents Ltd [1990] 1 WLR 1545, 1569G—H, per Bingham LJ; R v Inland
Revenue Comrs, Ex p Unilever plc [1996] STC 681. As Miss Grey QC
submits on behalf of the GMC, this requirement has certainly not been
watered down as the principle of legitimate expectation has developed.
E Thus in R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755 at
[42] we nd the following statement by Laws LJ:
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 other situations
the two kinds of legitimate expectation we are now considering
F [i e substantive expectations]something no less concrete must be found.
The cases demonstrate as much.
Referring to the situation where it is sought to derive a legitimate
expectation from a previous policy he considered at para 43 that there was a
need to establish a specic undertaking, directed at a particular individual
or group, by which the relevant policys continuance is assured. This is
G a high preliminary hurdle in the path of a party seeking to establish a
legitimate expectation.
41 A further requirement, identied in the cases early in the
development of legitimate expectation, for example in Ex p MFK
Underwriting [1990] 1 WLR 1545, is that the party seeking to rely on the
statement or representation must have placed all his cards on the table. This
is important because it can dene the context in which the statement or
H
representation is made. I consider that in the present case the claimant could
not have done more to make clear to the GMC his intentions. In particular,
he expressly and repeatedly drew attention to the fact that he planned to
undertake the course at IUHS by distance learning. He made entirely clear
what his plan was. That much is not in issue.
2816
Lloyd Jones LJ
42 However, there is a substantial issue between the parties as to the A

true meaning of the statement made on behalf of the GMC in the nal e-mail
sent on 16 November:
The General Medical Council accepts the primary medical degree
awarded from International University of Health, St Kitts for the
purposes of registration, this entitles the student to sit the PLAB exam in
order to by [sic] eligible for registration in the UK. B
On behalf of the claimant Mr Drabble submits that it was an assurance that

the qualication for which he was proposing to study would be recognised
by the GMC. Mr Drabble accepts, however, that that assurance could not
have been intended or understood to apply in perpetuity and, accordingly, he
acknowledges that the claimant could only claim the benet of it if he
completed the course within a reasonable time. On behalf of the GMC, C
Miss Grey draws attention to the fact that this response of the GMC is
expressed in the present tense and she submits that it is no more than an
accurate statement of the current position which contains no element of
assurance as to the future.
43 The judge correctly considered that the appropriate test is one of
objective intention. He drew attention to the fact that the statutory
D
provisions require the primary medical qualication to be for the time
being accepted by the General Council. In his view that indicated that the
qualication must be acceptable to the GMC at the time of the application
for registration and that the criteria for acceptability may change from time
to time. He pointed to the fact that all of the e-mails on which the claimant
relies were notably expressed in the present tense and therefore indicated
what was acceptable to the GMC at that particular time. He concluded at E
128 BMLR 146, para 83 that there is simply no clear and unequivocal
representation in the terms suggested . . . there is no representation as to the
future, or that the GMC would not change the criteria for acceptable
overseas qualications in the future. Furthermore, he did not consider it
was reasonable in the circumstances for the claimant to consider that the
representation included a promise by the GMC that it would not change the
F
criteria for acceptable overseas qualications during the period the claimant
was involved in obtaining it, no matter how long that might be.
44 The question for consideration is how, on a fair reading of the
statement, it would have been reasonably understood by those to whom it
was made: see R (Association of British Civilian Internees: Far East Region)
v Secretary of State for Defence [2003] QB 1397, para 56, per Dyson LJ.
In the present context the question is whether it would reasonably be G
understood as an assurance that the qualication would be recognised in the
case of this claimant if he obtained it in a reasonable time.
45 The statement has to be considered in the context in which it was
made. It would have been obvious to the members of the Registration and
Education Directorate that the claimant was planning to undertake the
course by distance learning and that he was seeking reassurance that when
H
he completed the course the qualication would be recognised by the GMC.
The matter is put very clearly by the claimant in his e-mail of 8 November:
However my question was that if I apply to IUHS and complete the
PRE-CLINICAL by distance learning and then complete the CLINICAL in
the UK, would that be acceptable to the GMC? The fact that the claimant
2817
Lloyd Jones LJ
A went back repeatedly in an attempt to obtain a clear answer to his question is

also highly relevant as part of that context. First, it shows the importance he
attached to the information he was legitimately seeking from the GMC.
Secondly, it shows that he was trying his utmost to provide a clear statement
of his intentions and to obtain a clear unequivocal response to his question.
46 The literal meaning ascribed by Miss Grey to the response of
B
16 November makes little sense in this context. A response limited to a
statement that the qualication is currently recognised would be accurate
but, when considered in its particular context, would be both unhelpful and
misleading. In this context, if it had been the intention to limit the response
to a statement of the current position and to leave the claimant to take his
chance as to whether that would remain the case, the Registration and
Education Directorate should have made that clear by stating, for example,
C that while that was the current position it might change and there could be
no guarantee that that would remain the position by the time the claimant
qualied.
47 The question to which this was a response related to the future and
the author of the e-mail of 16 November must have appreciated that the
response would be understood as relating to the future. On a fair reading in
D its context it would reasonably have been understood by the recipient as an
assurance in relation to the future. It is clear that the claimant understood
it in that way and that this was followed by detrimental reliance on the
assurance by the investment of time, e›ort and money in the years which
followed in obtaining the qualication.
48 I am satised therefore that the claimant received a clear,
unequivocal and unqualied assurance from the Registration and Education
E Directorate of the GMC, in the e-mail of 16 November, the e›ect of which
was that if he completed the proposed course in a reasonable time the
qualication would be recognised by the GMC.
49 In these circumstances, it is not necessary to address in any detail
Mr Drabbles secondary submission on this point which is based on
statements made by the GMC on its website about recognition of overseas
F degrees. We do not know precisely what information was included in such
statements because that content is no longer available. It is likely that they
would have stated that qualications from WHO-listed institutions were
recognised. However, it is not suggested that it would have included any
express statement concerning the acceptability of courses involving distance
learning.
G
A pressing and focussed representation
50 Clearly, not every departure by a public body from a previously
announced policy can give rise to a successful claim founded on a legitimate
expectation. In the Bhatt Murphy case [2008] EWCA Civ 755, Laws LJ
refers at paras 46—47 to the pressing and focussed nature of the kind of
assurance required if a substantive legitimate expectation is to be upheld and
H
enforced. In this regard he suggests that while in theory there may be no
limit to the number of beneciaries of a promise for the purpose of a
substantive legitimate expectation, in reality it is likely to be small if the
expectation is to be upheld because, rst, it is di–cult to imagine a case
in which government will be held legally bound by a representation or
2818
Lloyd Jones LJ
undertaking made generally or to a diverse class and, secondly because the A

broader the class claiming the benet of the expectation the more likely it is
that the supervening public interest will be held to justify the change of
position of which complaint is made.
51 Miss Grey seeks to invoke this passage in two ways. First she
submits that we do not know how many other prospective students received
similar responses from the Registration and Education Directorate of B
the GMC. However, to my mind this is an unsatisfactory approach. If the
GMC wishes to demonstrate, as part of its case that any assurance was
insu–ciently focussed, that many similar responses were made, it must
produce evidence to support that contention. In the absence of any such
evidence, I am not prepared to assume that there were widespread similar
responses or that there are many others in a similar position to the claimant.
52 Secondly, Miss Grey points to Mr Drabbles secondary case on this C
issue, i e the statements made on the website, as undermining his primary
case because of the breadth of the unidentiable audience to which those
statements were made. She submits that it is di–cult to imagine the GMC
bound by representations made generally to such a diverse class. The court
is not in a position to determine whether others who read and relied on
statements on the website may be able to mount a case on legitimate D
expectation. As the statements on the website have not been preserved, we
do not know precisely what was said or the circumstances of those who
may have read them. As a result, we do not know whether there may be
others in a position comparable to that of the claimant. However, given
that this change of policy was rst initiated in 2006, I would expect that the
GMC would, by now, be aware of any similar claims. Moreover, I note
that the 2010 paper draws attention to the fact that only a small number of E
international medical graduates were deemed not to hold an acceptable
primary medical qualication. But, in any event, in the particular case with
which we are concerned, Mr Drabble is able to point to specic statements
in the exchanges of e-mails, directly focussed not simply on the universities
and institutions whose degrees are recognised but alsoa matter of vital
importance in the light of the specic ground of refusal to recognise the F
claimants degreeon the fact that the course proposed by the claimant is
to be undertaken by distance learning. To my mind, the claimants
repeated requests for clarication in succeeding e-mails serve to focus
attention very e›ectively on his specic position. I consider that this
requirement is satised.
G
Is reliance on the representation contrary to the terms of the statute?
53 On behalf of the GMC it is submitted that reliance by the claimant
on the representation contained in the e-mail of 16 November is contrary to
the terms of the Medical Act 1983. Miss Grey draws attention to the
denition of an acceptable overseas qualication in section 21B as a
qualication for the time being accepted by the General Council as
H
qualifying a person to practise as a medical practitioner in the United
Kingdom (emphasis added). She submits that the statute requires the GMC
to exercise judgement on a periodic basis as to what qualications should be
accepted and that therefore it cannot be required to apply an outdated policy
which it no longer considers appropriate.
2819
Lloyd Jones LJ
A 54 Without deciding the point, the judge considered it at least strongly

arguable that, if the representation claimed had been made, to disenable the
GMC from resiling from it would be contrary to the express provision of the
statute which requires the GMC to identify qualications that it considers
acceptable at any particular time. In his view a representation by the GMC
that fetters its ability to change the criteria upon which qualications are
B judged is, at least arguably, both unlawful and contrary to its statutory
obligations.
55 To my mind, the statutory scheme of the Medical Act 1983 does not
exclude the operation of the principle of legitimate expectation in the
particular circumstances of this case. The statutory duty has to be exercised
in accordance with established principles of substantive fairness. Those
principles necessarily take account of the statutory duty and do not lead
C invariably to the result that e›ect is given to the legitimate expectation. For
example, if there were a compelling justication for the immediate
implementation of a new policy without any transitional measures that
would not be an abuse of power and any legitimate expectation would be
overridden. For the reasons set out below, I do not consider that any such
incompatibility between the principle of legitimate expectation and the
D statutory duty arises in the particular circumstances of this case.
If there is a legitimate expectation, is the GMC entitled to frustrate it?

56 Although at an early stage in his submissions Mr Drabble presented
the expectation for which he contends as a procedural legitimate
expectation, it is clear to me that it is substantive in character. As this area
E of the law has developed, a distinction has been identied between a
procedural expectation to be consulted or in some way involved in the
decision making process before there is a departure from the assurance given
on the one hand and an expectation to enjoy the substantive benet or
advantage promised on the other. Here, the claimant wants his qualication
to be recognised and therefore the case falls into the second category.
F
57 The Court of Appeal in R v North and East Devon Health Authority,
Ex p Coughlan [2001] QB 213 was addressing this category of case when it
observed, at para 57:
Where the court considers that a lawful promise or practice has
induced a legitimate expectation of a benet which is substantive, not
simply procedural, authority now establishes that here too the court will
G in a proper case decide whether to frustrate the expectation is so unfair
that to take a new and di›erent course will amount to an abuse of power.
Here, once the legitimacy of the expectation is established, the court will
have the task of weighing the requirements of fairness against any
overriding interest relied upon for the change of policy. (Original
emphasis.)
H 58 The burden of proof on this issue was addressed by Lord Dyson JSC
in Paponette v Attorney General of Trinidad and Tobago [2012] 1 AC 1,
paras 36—37 as follows:
36. The critical question in this part of the case is whether there was a
su–cient public interest to override the legitimate expectation to which
2820
Lloyd Jones LJ
the representations had given rise. This raises the further question as to A
the burden of proof in cases of frustration of a legitimate expectation.
37. The initial burden lies on the applicant to prove the legitimacy of
his expectation. This means that in a claim based on a promise, the
applicant must prove the promise and that it was clear and unambiguous
and devoid of relevant qualication. If he wishes to reinforce his case by
saying that he relied on the promise to his detriment, then obviously B
he must prove that too. Once these elements have been proved by
the applicant, however, the onus shifts to the authority to justify the
frustration of the legitimate expectation. It is for the authority to identify
any overriding interest on which it relies to justify the frustration of the
expectation. It will then be a matter for the court to weigh the
requirements of fairness against that interest.
C
59 Under the Medical Act 1983 the GMC is given the responsibility of
deciding which qualications granted outside the United Kingdom it will,
for the time being, accept. In doing so it must act in accordance with its
main objective, namely to protect, promote and maintain the health and
safety of the public. The GMC is clearly entitled to adopt, from time to time,
a new policy in relation to the recognition of overseas qualications and,
depending on the view it takes of the relevant courses, may well be under a D
duty to do so. For the reasons set out earlier in this judgment, I consider that
the new criteria adopted by the GMC in 2006 and again in 2010 were,
in themselves, lawful. The question which arises for decision in this part of
the case is, to my mind, a much more specic one: was there a su–cient
public interest to justify changing the rules so as to deny recognition to
qualications which were obtained following a course of study which E
involved a substantial distance learning element, without making
transitional provision for the case of the claimant who had received an
assurance that his qualication would be recognised if obtained within a
reasonable time. Within this context, it is for the GMC to prove that its
refusal to honour its assurance to the claimant was justied in the public
interest. There is no burden on the claimant to prove that it was
not justied. F
60 This leads directly to the question of the appropriate standard of
review in such a case. In Ex p Coughlan [2001] QB 213, para 58 this court
considered that in a case of substantive legitimate expectation the court has
to decide for itself whether there is a su–cient overriding interest to justify a
departure from what has been previously promised. As Laws LJ explained
in the Bhatt Murphy case [2008] EWCA Civ 755 at [35]: G
The establishment of any policy, new or substitute, by a public body is
in principle subject to Wednesbury review. But a claim that a substitute
policy has been established in breach of a substantive legitimate
expectation engages a much more rigorous standard. It will be
adjudged . . . by the courts own view of what fairness requires.
H
61 In applying an objective standard of fairness, in seeking to establish
whether a refusal to honour a promise is an abuse of power, the court must
weigh the competing interests. As appears from a particularly illuminating
passage, once again from Laws LJ, this time in R v Secretary of State for
Education and Employment, Ex p Begbie [2000] 1 WLR 1115, 1130—1131,
2821
Lloyd Jones LJ
A the degree of intensity of review will vary from case to case, depending on
the character of the decision challenged.
As it seems to me the rst and third categories explained in Coughlan
are not hermetically sealed. The facts of the case, viewed always in their
statutory context, will steer the court to a more or less intrusive quality of
review. In some cases a change of tack by a public authority, though
B unfair from the applicants stance, may involve questions of general
policy a›ecting the public at large or a signicant section of it (including
interests not represented before the court); here the judges may well be in
no position to adjudicate save at most on a bare Wednesbury basis,
without themselves donning the garb of policy-maker, which they cannot
wear. The local government nance cases, such as R v Secretary of State,
Ex p Hammersmith [1991] 1 AC 521, exemplify this. As Wade & Forsyth
C
observe (Administrative Law, 7th ed (1994), p 404): Ministers decisions
on important matters of policy are not on that account sacrosanct against
the unreasonableness doctrine, though the court must take special care,
for constitutional reasons, not to pass judgment on action which is
essentially political.
In other cases the act or omission complained of may take place on a
D much smaller stage, with far fewer players. Here, with respect, lies the
importance of the fact in Coughlan that few individuals were a›ected by
the promise in question. The cases facts may be discrete and limited,
having no implications for an innominate class of persons. There may be
no wide-ranging issues of general policy, or none with multi-layered
e›ects, upon whose merits the court is asked to embark. The court
may be able to envisage clearly and with su–cient certainty what the full
E
consequences will be of any order it makes. In such a case the courts
condemnation of what is done as an abuse of power, justiable (or rather,
falling to be relieved of its character as abusive) only if an overriding
public interest is shown of which the court is the judge, o›ers no o›ence
to the claims of democratic power.
There will of course be a multitude of cases falling within these
F extremes, or sharing the characteristics of one or other. The more
the decision challenged lies in what may inelegantly be called the
macro-political eld, the less intrusive will be the courts supervision.
More than this: in that eld, true abuse of power is less likely to be found,
since within it changes of policy, fuelled by broad conceptions of the
public interest, may more readily be accepted as taking precedence
over the interests of groups which enjoyed expectations generated by an
G
earlier policy.
62 In considering the justication put forward by the GMC the court
must give weight to the fact that it is an expert professional body charged by
Parliament with the specic function of deciding which overseas medical
qualications should be recognised and that it is required to act to protect,
promote and maintain the health and safety of the public. The courts would,
H
therefore, normally expect to treat with considerable respect its assessment
of the need for the adoption of a particular policy. However, it is necessary
to subject the proposed justication to critical analysis and to weigh it
against the competing interests in favour of honouring the assurance given to
the claimant.
2822
Lloyd Jones LJ
63 In making her submissions on this part of the case, Miss Grey A

emphasised that the decision taken by the GMC in 2006 adopting new
criteria was a response to a general problem. It was not intended simply to
address a small number of particularly egregious abuses which had been
identied. During the course of argument we were taken to the papers
which were before the registration committee when it took its decisions in
relation to recognition of overseas qualications in June 2006 and July
B
2010. The 2006 paper explains the background. Prior to 1995 the GMC
maintained its own list of acceptable overseas qualications. They
numbered around 900. In 1995 the GMC decided that it was no longer
feasible to maintain this list based upon its own assessment and decided that
the list of qualications published by the World Health Organisation
(WHO) should be used as an alternative. The e›ect of this decision was to
expand the list of primary medical qualications that would be acceptable C
for registration from around 900 previously recognised by the GMC to
around 2000 on the WHO Directory.
64 The 2006 paper explains that in October 2005 a BBC investigation
led to allegations about one of the primary medical qualications listed in
the WHO Directory. This revealed a–liations claimed between a private
UK-based medical college and a university in Senegal which appeared in the
D
WHO Directory. The paper recorded that for some years the GMC had
been aware of and concerned about the emergence of private UK-based
medical colleges claiming to o›er medical degree level courses. Some of the
colleges began to claim that they had secured accreditation via the WHO
Directory because they had a–liations with universities issuing primary
medical qualications in other countries. The paper referred in particular to
two such private colleges in the United Kingdom. At worst the primary E
medical qualications which the GMC had accepted had not been issued by
the WHO Directory universities at all. More generally, the 2006 paper
recorded that during the course of the investigations the GMC had identied
that some WHO Directory primary medical qualications were issued by a
university in one jurisdiction following a course of study undertaken wholly
or substantially in another jurisdiction. Some were awarded following a
F
course of study substantially less than 5,500 hours, which was usual for
UK courses. Some were awarded following a course of study undertaken
without face to face teaching i e by correspondence or distance learning.
Some were awarded by universities that had no physical address on the
WHO Directory. The 2006 paper also raised concerns about whether
schools claiming to be a–liated to universities listed in the WHO Directory
were in fact linked to them and about the fact that the WHO did not at that G
time accredit medical schools.
65 The 2006 paper addressed possible alternatives to the use of the
WHO Directory. It did so against the background that a single accreditation
system for evaluating the quality and rigour of all international medical
schools did not exist nor was one likely to exist in the near future. The 2006
paper identied a number of options for the immediate future.
H
(1) The rst option was to continue with the then current arrangements
using the WHO Directory and to continue to use the PLAB test and other
routes to limited registration in order to screen out any doctor who did not
have the requisite knowledge, skills and experience for limited registration.
The paper recorded that this option would have the advantage of not
2823
Lloyd Jones LJ
A requiring any change to the current arrangements which might be subject to

challenge by those who would claim to be disadvantaged. However, it noted
that some primary medical qualications issued by institutions in the WHO
Directory had been completed in a much shorter duration than would be
accepted in a UK or EEA course (i e a minimum of 5,500 hours). It noted
that others have included signicant elements studied by correspondence
with others undertaken outside the country which issues the diploma and
B
without su–cient quality checks on the degree course. It explained that
following this option would leave the GMC dependent on the PLAB test as
an e›ective screening tool. However, concerns had been expressed at the
growth of private colleges schooling candidates to take the PLAB test and it
was suggested that this may no longer be e›ective in screening out
candidates who did not have the depth of underlying knowledge and skills
C for limited registration.
(2) A second option was to create a GMC accredited list of acceptable
medical schools. However, this would be likely to give rise to the same
practical di–culties experienced before 1996. Furthermore, reference was
made to the fact that any signicant reduction in the list of acceptable
primary medical qualications was likely to invite a challenge from those
who would claim to have a legitimate expectation that their primary medical
D
qualication, whether already held or currently being studied for, would
be acceptable for the purposes of GMC registration. Furthermore, the
problems identied [i e courses shorter that 5,500 hours, correspondence
teaching and courses taught outside the jurisdiction of the body that awards
the primary medical qualication] did not necessarily apply to all the
primary medical qualications awarded by a single university.
E (3) The third option identied was to review the denition of an
acceptable primary medical qualication in the light of the GMCs
investigations. It was suggested that the EU Directive due to come into force
in October 2007, which would not be applicable to non-EEA nationals with
non-EEA qualications, might provide a good basis for insisting on some
sort of minimum good practice for all overseas applicants.
66 The 2006 paper proposed that the third option would appear to
F
provide the best way forward in the short term, whilst minimising the
amount of administrative cost and potential risk of challenge of the other
two options. The paper proposed that in that way the GMC should
reconsider its denition of an acceptable primary medical qualication,
taking account of concerns that some were awarded after a course of study
undertaken wholly or substantially outside the country that awarded the
G primary medical qualication, some were much shorter than a UK primary
medical qualication, some primary medical qualications were obtained
after a correspondence course and some primary medical qualications were
issued by organisations that appear to have no physical address, making
independent verication very di–cult.
67 The registration committee adopted this third option.
68 In July 2010 the Council of the GMC was asked to adopt revised
H
criteria. Extensive reference was made at the hearing before us to the papers
before the Council on that occasion. The 2010 paper expressed concerns as
to the way in which the Registration Appeals Panel had interpreted the
criteria adopted in 2006. In relation to criterion (d) of 2006 i e that requiring
that the qualication must not have been gained following a course of study
2824
Lloyd Jones LJ
undertaken wholly or substantially outside the country that awarded the A

primary medical qualication, the 2010 paper explained, rst, that this
criterion is necessary to deal with a small number of students who move
from university to university in order to obtain an acceptable overseas
qualication. It stated that in some cases not only may the students spend as
little as twelve months studying under the ambit of the overseas institutions,
but also this may not have included any time in the country awarding the
B
qualication. This was not the position in the case of the claimant.
Secondly, the paper identied a particular problem in medical schools based
in the Caribbean where there was a high density of medical schools but
insu–cient hospital positions to allow the students to undertake practical
training. As a result the clinical rotations were undertaken outside the
country awarding the qualication, usually in hospitals in the United States
or the United Kingdom. The paper stated that the GMC had been unable to C
establish the nature of these arrangements and in particular the extent of the
supervision that such students received or the measures the medical schools
had in place to ensure the quality of the training received by students whilst
overseas. Here I note that the claimant did, indeed, complete his rotations in
the United Kingdom. He did so alongside students from UK universities and
medical schools and he was able to provide the GMC with detailed
D
information and references in relation to his rotations, in the majority of
which he obtained honours.
69 It is, however, right to draw attention to the fact that the claimant
spent just eight weeks of the standard four-year course physically based in
St Kitts (from 21 October 2006 to 14 December 2006). The papers of 2006
and 2010 reect a clear view on the part of the GMC that a substantial
distance learning element in a course leading to a primary medical E
qualication is undesirable, in particular because it does not permit su–cient
engagement between students and teachers. However, beyond such general
concerns, these papers do not point to any specic danger to the public
arising from distance learning. The only specic criticisms of distance
learning made in these papers are that it might conceal other vices which it is
not suggested were present in this claimants education or training.
F
70 In her rst witness statement, Frances Conway, head of registration,
investigation and intelligence at the GMC, considers in greater detail the
justication for the adoption of a new policy in relation to distance learning.
The principal matters to which she refers may be summarised as follows.
(1) She points to the requirements regarded as necessary to deal with the
issue of graduate tourism the small numbers of students who move from
university to university to obtain an acceptable overseas qualication. (2) It G
was an important element of the reforms that they should address the issue
of colleges which had no genuine link to the institution purportedly
awarding the degrees. (3) The requirement of physically spending time in
the country of qualication at the awarding institution ensures that there is a
closer genuine link between the awarding institution and the student and the
qualication he or she obtains. (4) The approach has helped to highlight
H
other unacceptable practices, namely those identied in the 2006 paper,
claries for potential students that they are unacceptable for those intending
to practise in the United Kingdom and allows such arrangements to be
investigated and dealt with appropriately by the relevant authorities. (5) It
prevents graduates from such schools entering the profession and putting the
2825
Lloyd Jones LJ
A public at risk. (6) Some organisations may fail to provide adequate facilities
for their students. The 50% criterion requires students physically to attend
the awarding institution and to access all the available facilities. If they nd
these facilities are lacking then they are in the position to make a decision
about continuing their course of study at an early stage.
71 Miss Conway does not claim that the 50% requirement alone ensures
a proper standard of education. However, she explains that the aim is to
B
ensure that, for those intending to practise in the United Kingdom, the
opportunities for direct contact with teaching sta›, access to relevant
support and facilities and active engagement in their medical education will
be optimised. She states that it is believed to be one of the most e›ective
safeguards available to the GMC in its endeavour to ensure that the standard
of medical education provided by overseas awarding bodies is satisfactory.
C Finally, she emphasises that the 50% requirement is just one criterion which
makes up the denition of what is an acceptable overseas qualication.
72 I do not intend to be critical of Miss Conway in any way, but not all
of the factors which she identies are apparent from the contemporaneous
documents and there may be an element of ex post facto justication on the
part of the GMC here. The justications summarised under heads (1), (2)
and (4) relate to distinct abuses which are not alleged to have occurred in the
D
case of the claimants training. So far as head (6) is concerned, the fact that
some universities may fail to provide facilities for students in residence is not
a good reason for refusing to recognise distance learning qualications.
It has no bearing on the quality of qualications obtained by distance
learning. In the same way, the fact that presence at the teaching institution
may help reveal other deciencies or abuses, if such exist, is not in itself an
E objection to distance learning.
73 So far as possible risk to the public is concerned, Miss Conways
statement in her rst witness statement that the 50% rule also prevents
graduates from such schools entering into the profession and putting the
public at risk is little more than a bold assertion, with little to substantiate
it. In the contemporaneous documents there is no evaluation of the degree of
risk arising from distance learning in itself. Rather, distance learning is
F
considered in the 2006 paper as one factor in conjunction with courses
of shorter duration than would be accepted in the United Kingdom and
situations where there are insu–cient quality checks on degree courses.
Furthermore, it is necessary to consider this aspect of the case in the context
of the other requirements of professional training. I accept that the 2006
paper expressed a reservation about the use of the PLAB test as an e›ective
G screening tool. However the specic concern which was raised was that,
with the growth of private colleges schooling candidates to take the PLAB
test, it may no longer be e›ective in screening out candidates who do not
have the depth of underlying knowledge and skills for limited registration.
(I note, however, that the GMCs website currently describes the PLAB test
as the main route by which international medical graduates (IMGs)
demonstrate that they have the necessary skills and knowledge to practise
H
medicine in the UK.) It is, to my mind, highly material to the present issue
that, before he would be able to practise medicine independently in the
United Kingdom, the claimant would be required to pass a number of
further tests. He would be required to pass an objective, structured, clinical
examination (OSCE) as part of a foundation programme clinical assessment.
2826
Lloyd Jones LJ
He would be required to pass both parts of the PLAB and a situational A

judgment test. He would then be required to complete successfully
foundation year 1 and foundation year 2. It is correct that during those
two foundation years the claimant would be practising medicine; however,
he would be doing so under supervision.
74 In this regard Mr Drabble also draws attention to the fact that in
2009 the Registration Appeals Panel allowed appeals in three cases despite B
the fact that the qualications obtained by the students concerned did not
meet the 2006 criteria. However, this does not really advance the claimants
case because the GMC has consistently maintained that it should not have
done so.
75 I have no doubt that face to face learning is superior to distance
learning and that the steps taken by the GMC to require that courses include
a greater proportion of direct teaching will have e›ected a considerable C
improvement. However, it is important not to lose sight of what is under
consideration here. It is not whether the GMC is justied in refusing
recognition to certain distance learning qualications, but whether it was
justied in deciding to do so without introducing any transitional provisions
with the result that it refused to honour the assurance given to the claimant.
To my mind the reasons advanced by the GMC are less than compelling as a D
justication for introducing the new policy with immediate e›ect and
without any mitigating measures for those already committed to courses.
76 The introduction of transitional measures would, no doubt, delay
the full implementation of the new policy. Furthermore, in her submissions
Miss Grey placed emphasis on what she claimed would be the
impracticability of any mitigating measures or transitional provisions which
might be adopted by the GMC. Here she refers, in particular, to the E
di–culties of assessing overseas qualications, the GMC having no power or
resources to accredit overseas degrees. She also points to the di–culty of
discretionary evaluation in individual cases. However, in this regard I note
that the 2010 paper specically draws attention to the fact that only a small
number of international medical graduates are deemed not to hold an
acceptable primary medical qualication. It states that in 2008 there were F
ve such cases, in 2009 there were three, all of which were overturned by the
Registration Appeals Panel on appeal, and in the period January to 13 July
2010 there were ten such cases.
77 It is a striking feature of the present case that there is no evidence
that the GMC, when introducing its new rules in relation to distance
learning in 2006 and 2010, gave any consideration to the e›ect of the
introduction of the new rules on those currently following courses involving G
a high proportion of distance learning.
78 The author of the 2006 paper clearly had in mind the possibility of
legal challenges to the various options under consideration. He states that
continuing with the present arrangements would have the advantage of
avoiding any challenge by those who would claim to be disadvantaged by
new arrangements. Furthermore, when considering the second option H
i e recreating a GMC accredited list of acceptable medical schools, he makes
the point that
any signicant reduction in the list of acceptable primary medical
qualications is likely to invite a challenge from those who would claim
2827
Lloyd Jones LJ
A to now have a legitimate expectation that their primary medical

qualication (either held or currently been studied for) would be
acceptable for the purposes of GMC registration. Over the years the
GMC has routinely made statements about the acceptability of primary
medical qualications. These statements have never previously been
qualied (by for example stating the policy was subject to change or
B
variation at any time).
Here, the paper concentrates on the problem from the point of view of the
GMC and does not address it from the point of view of those seeking to
qualify to practise. When we come to the third optionthe option
subsequently adoptedwe nd no consideration at all of how this proposal
might a›ect those currently following such distance learning courses or the
C
potential unfairness to them of a change in the rules without the cushion of
transitional provisions. On the contrary, one of the reasons for
recommending the third option is said to be that it will minimise the
potential risk of challenge under the other two options.
79 I accept that the way in which the Registration Appeals Panel
between 2006 and 2010 applied the provision permitting further review did,
in fact, operate to mitigate the e›ect of the new criteria adopted in 2006.
D However, there is nothing in the contemporaneous papers to support the
view that this was introduced in order to mitigate the impact of the new
policy in the case of students currently pursuing such courses. On the
contrary, the GMC has maintained consistently that the 2006 criteria did
not confer such a discretion and, in any event, it acted in 2010 so as to make
clear that the Registration Appeals Panel did not have such a discretion.
E 80 Similarly, in the 2010 paper we nd a recommendation at para 31
that the 2010 modication should be given immediate e›ect:
As we do not accredit overseas institutions, the fact that a
qualication was deemed acceptable at some point in the past cannot lead
to it being acceptable in perpetuity. Instead, we would expect that, at the
point of determining the application, the qualication must satisfy the
F agreed criteria and the qualication must be currently acceptable to
the GMC.
There is in the 2010 paper, no consideration of the position of students who
are already pursuing a distance learning course.
81 As we have seen, in 2006 the GMC was aware, at the very least, that
over the years its o–cials had routinely made statements about the
G acceptability of the primary medical qualications which had never been
qualied by stating that the policy was subject to change or variation at any
time. Nevertheless it appears that in taking these decisions in 2006 and
again in 2010 no consideration was given to whether it was necessary to
introduce the new rules with immediate e›ect or to the consequences of
doing so. This in itself seems to me su–cient to lead to the conclusion that
the decision to apply these rules to the claimant should be quashed. At the
H
very least, the GMC should have taken account of the impact of its decision
to depart from its previous policy with immediate e›ect on the claimant and
anyone else who received a similar specic assurance. It should have done
so before deciding whether to change course. Failure to do so vitiates
the decision on Wednesbury grounds. This is the rst category of case
2828
Lloyd Jones LJ
considered by the Court of Appeal in Ex p Coughlan [2001] QB 213, A

para 57. Similarly in R (Bibi) v Newham London Borough Council [2002]
1 WLR 237, paras 49—51, the failure of the local authority properly to take
account in its decision making process of the legitimate expectations to
which it had given rise many years previously led to the conclusion on
Wednesbury principles that it had acted unlawfully. By the same token, the
failure of the GMC to take account of the impact of its new policy on those
B
currently pursuing such courses vitiates its decision.
82 However, this may not be su–cient to dispose of this appeal.
Miss Grey submitted that such a basis of decision would not prevent the
GMC from reconsidering the matter and taking a new decision. Moreover,
the submissions made on behalf of the claimant advance a more
fundamental case. It is his case that, as a matter of fairness, the e›ect of his
substantive legitimate expectation is that it is not open to the GMC to refuse C
to recognise his qualication. That case now has to be addressed.
83 In that context, I consider that the omission of the GMC to consider
the impact of its change of policy on those currently pursuing distance
learning courses has a wider signicance. When the court considers the
fairness of overriding a substantive legitimate expectation, the standard of
review is a sliding scale: see R v Secretary of State for Education and
D
Employment, Ex p Begbie [2000] 1 WLR 1115, 1130—1131, per Laws LJ,
cited above at para 61. Normally, the court would accord a considerable
degree of respect to a specialist body such as the GMC which is required by
Parliament to decide which qualications should be recognised. However,
in the present case there is no reasoning emanating from the GMC at the
time the decisions were taken leading to the conclusion that distance
learning was such a problem as to require an immediate refusal to recognise E
the qualications of those currently pursuing distance learning courses.
Nor is there any contemporaneous paper dealing with the steps that might
have been taken to mitigate the impact of the change of policy on persons in
that position.
84 There are present in this case further factors going to the evaluation
of unfairness all of which support the claimants case. They may be
F
summarised as follows. (1) We are not concerned here with an assurance or
representation which is derived from a former policy or a course of conduct.
Rather, the claimed legitimate expectation is founded on an express
statement made by a person held out by the GMC as competent to give such
advice and which, for the reasons set out above, I consider could only have
been reasonably understood in one sense. (2) A substantive legitimate
expectation is more likely to be respected where it arises from a G
representation to an individual or a small class, for the reasons given by
Laws LJ in the Bhatt Murphy case [2008] EWCA Civ 755 referred to earlier
in this judgment. In the present case, the claimant was the recipient of an
assurance which was directed to him personally and was a response to the
particular circumstances of his case. (3) There can be little doubt as to the
importance of the expectation to the claimant. At the time of his inquiries of
H
the GMC he was 46 years of age and contemplating a change of career.
It had been his ambition throughout his adult life to qualify and practise
as a doctor and he was now in a position to take steps to achieve this.
Furthermore, the sta› at the Registration and Education Directorate of the
GMC would have been well aware that the information they gave to
2829
Lloyd Jones LJ
A potential students would be of vital importance to their future careers.

(4) While detrimental reliance is not a condition precedent to the existence
of a substantive legitimate expectation in public law, its presence may be an
inuential consideration in determining what weight should be given to the
legitimate expectation when evaluating the balance of fairness. In this case
detrimental reliance is present in abundance. The claimant states that, given
B
that he had lived in the United Kingdom for some 40 years and always
intended to practise as a doctor in the United Kingdom, he would not have
enrolled on the MBBS course at IUHS unless he had been given an
unequivocal assurance that the qualication he would obtain on completion
was acceptable to the GMC. He undertook a course which was extremely
demanding in terms of time and e›ort. The total nancial cost to him of
following the course was in the region of US$40,000. He had to work
C part-time as a locum to fund the course and as a result he had little or no
leisure time. This imposed considerable strains on the claimant and his
family. (5) The decision of the GMC not to recognise the claimants
qualication is not in the macro-political eld and, as appears above,
the number of persons who may be a›ected by upholding the legitimate
expectation in this case is likely to be small.
D 85 I have, therefore, come to the conclusion that it was not open to the
GMC to change its policy in 2006 or again in 2010 without adopting some
transitional provision that would cater for the case of this claimant. I am
unable to identify any su–cient public interest which outweighs the
unfairness to the claimant of refusing to honour the assurance given and to
recognise his qualication. There was considerable discussion before us as
to what form that transitional provision should have taken. Mr Drabble
E identied three possible options: the application of the pre-2006 rules to
candidates who commenced a course included in the WHO Directory before
2006, consideration of each individual case on its merits by the Registration
Appeals Panel and delayed introduction of changes to allow a›ected
students to plan. In this regard Mr Drabble drew attention to a recent
decision by the GMC on 27 September 2012 to change the regulatory
F framework in relation to courses delivered by a UK university but at an
overseas campus. This announcement recognises the need for any changes
to be prospective only and emphasises that it should not a›ect those already
admitted under the existing arrangements.
86 I consider that it is neither necessary nor appropriate for this court to
identify what transitional provisions should have been adopted, given that it
is clear that in this case it would have been open to the GMC to adopt some
G
form of transitional provision which would have satised the claimants
legitimate expectation. Indeed, Miss Grey accepted that the court does
not have to decide what the transitional provisions should have been.
Moreover, it seems to me that their precise form should be a matter for
the GMC.
H Delay
87 Miss Grey makes two further submissions, both relating to the
considerable passage of time since the change of policy in 2006.
88 First, she submits that the GMC could not be taken to have given an
assurance that the IUHS qualication would be recognised in perpetuity, but
2830
Lloyd Jones LJ
only for a reasonable time. The course in question was a four-year course A
but it took the claimant six years to complete it. This delay, she submits, had
caused any assurance to lapse. I accept that the assurance could only be
invoked if the qualication were obtained within a reasonable time.
However, I have no doubt that in the particular circumstances of this case
the course was completed in a reasonable time. The four-year course was
available to the claimant only because he already had a BSc, so the GMC
B
should have had in contemplation the possibility of students embarking on a
six-year course. Furthermore, there has to be some exibility in this regard.
The claimant has explained that while following this course of study he had
to work part-time as a locum pharmacist to fund the course. In addition, he
was subject to additional strains as a result of his wifes illness. In these
circumstances, the progress he made and the results he achieved were
commendable. I have come to the rm conclusion that the assurance had not C
lapsed by the time the claimant sought to invoke it.
89 Miss Grey observed, in passing, that the irony of the present case is
that had the claimant completed his course in the standard four years, the
qualication he had obtained would have been considered by the GMC
before the second change of policy in 2010 and would have been dealt with
by the Registration Appeals Panel. I attach no weight to this consideration,
D
not least because the position of the GMC has been and remains that the
Registration Appeals Panel was not entitled to act as it did.
90 Secondly, Miss Grey relies on the power under section 31(6) of the
Senior Courts Act 1981 to refuse relief on grounds of delay if the court
considers that it would be detrimental to good administration. She submits
that if the claim had been brought at or near the time at which the criteria
changed in 2006, remedies would have been relatively straightforward and E
would have been likely to have caused relatively little delay. Furthermore,
she submits that if this challenge had been brought closer to the dates at
which the criteria were changed, it would have been possible for the GMC to
consider whether there were any additional measures that feasibly could be
put in place to deal with the situation, or the claimant could have been
advised to alter his chosen course of study at an earlier date so as to ensure
F
that it complied with the new criteria.
91 Arguments based on the alleged delay, as opposed to the nature
of the assurance given by the GMC, have failed at earlier stages in these
proceedings. I accept that in an appropriate case it would nevertheless be
open to this court to refuse to grant relief on grounds of delay. However,
I have no hesitation in rejecting this submission. I am totally unpersuaded
that there is potential for prejudice to good administration by the grant of G
relief in this case. In this regard, I draw attention to my conclusion as to
the number of persons likely to be in a similar position to the claimant.
Furthermore, the nature of the assurance given by the GMC in this case and
the duration of the course which it was understood the claimant proposed to
undertake were such that it was likely to be a long time before the assurance
could be relied upon. When the claimant was refused permission he acted
H
promptly to challenge the decision.
92 Finally, I should record that, following the completion of argument
before us, the GMC applied for permission to put in evidence further e-mails
which had passed between the claimant and the GMC in 2009 and 2010.
For my part, I would refuse permission. As the GMC accepts, this evidence
2831
Lloyd Jones LJ
A could, with the exercise of reasonable diligence, have been obtained by it

before the hearing below. Furthermore, I do not regard these further e-mails
as potentially inuential in relation to the issues in this case.
93 For these reasons I would allow the appeal. In the particular
circumstances of the claimants case the GMC is not entitled to go back on
the assurance which it gave him. The relief granted should be specic to the
claimant and should compel the GMC to recognise his primary medical
B
qualication for the purposes of the Medical Act 1983.
LLOYD LJ
94 I agree.
LORD DYSON MR
C 95 I also agree.
Appeal allowed with costs.

Declaration that e›ect of
correspondence between parties in
2004 was that defendant was legally
obliged to recognise claimants
D degree as acceptable overseas
qualication for purposes of
Medical Act 1983, section 21B(2).
Undertaking by defendant to provide
claimant with written conrmation
that it recognised claimants degree
E
as acceptable overseas qualication
for purpose of provisional
registration and that subject to
satisfying all other statutory
requirements he would be permitted
to enrol for and sit PLAB test.
F SUSAN DENNY, Barrister

R (Patel) V General Medical Council (2013) 1 WLR 2801

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R (Patel) V General Medical Council (2013) 1 WLR 2801

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2801

[2013] 1 WLR R (Patel) v General Medical Council (CA)

*Regina (Patel) v General Medical Council

Medical practitioner Registration Legitimate expectation Application for

On the claimants appeal A

APPEAL from Hickinbottom J E

A representations as to the present as opposed to the future; (3) holding that it

C Richard Drabble QC and Kate Beattie (instructed by Neumans LLP) for

The court took time for consideration.

The regulatory framework

A 7 There are no universally accepted criteria for accreditation of medical

was a precondition of acceptance of a qualication, in three appeals the A

A pre-clinical studies on a part-time basis because he was still carrying on his

A 23 The claimant sent a further e-mail on 14 November, headed Further

awards the qualication. The standard course of study at IUHS is A

A (1) Challenges to the new criteria

A then goes on to submit that the imposition of a blanket rule, admitting no

(2) Legitimate expectation

A clear, unambiguous and unqualied statement

42 However, there is a substantial issue between the parties as to the A

On behalf of the claimant Mr Drabble submits that it was an assurance that

A went back repeatedly in an attempt to obtain a clear answer to his question is

undertaking made generally or to a diverse class and, secondly because the A

A 54 Without deciding the point, the judge considered it at least strongly

If there is a legitimate expectation, is the GMC entitled to frustrate it?

63 In making her submissions on this part of the case, Miss Grey A

A requiring any change to the current arrangements which might be subject to

undertaken wholly or substantially outside the country that awarded the A

He would be required to pass both parts of the PLAB and a situational A

A to now have a legitimate expectation that their primary medical

considered by the Court of Appeal in Ex p Coughlan [2001] QB 213, A

A potential students would be of vital importance to their future careers.

A could, with the exercise of reasonable diligence, have been obtained by it

Appeal allowed with costs.

F SUSAN DENNY, Barrister

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