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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Phipps, Re Application for Judicial Review [2005] ScotCS CSOH_48 (30 March 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_48.html Cite as: [2005] ScotCS CSOH_48, [2005] CSOH 48 |
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Phipps, Re Application for Judicial Review [2005] ScotCS CSOH_48 (30 March 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 48 |
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P1626/03
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OPINION OF LORD DRUMMOND YOUNG in the petition of ROBERT FRANCIS PHIPPS Petitioner; for Judicial Review of a decision of the Royal College of Surgeons of Edinburgh to withdraw the petitioner's specialist accreditation in general surgery
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Petitioner: Bovey, QC; Blair; Balfour & Manson
Respondents: Hodge, QC, Arthurson; Shepherd & Wedderburn
30 March 2005
[1] The petitioner is a consultant surgeon. In 1983 he was elected a Fellow of the Royal College of Surgeons of Edinburgh, the respondents in the present petition. Surgeons who wish to become consultants are required to undergo appropriate specialist training. Such training takes place under the Scheme of Higher Surgical Training, a scheme which has been in existence for many years. The Scheme is controlled by the Joint Committee of the four Royal Surgical Colleges in Great Britain and Ireland, the relevant specialist associations of surgeons and the university professors of surgery. The detailed provisions of the Scheme have been altered from time to time by periodic reports made by the Joint Committee on Higher Surgical Training (JCHST). In practice these reports are regarded as the primary documents governing the Scheme. At the time with which the present case is concerned, the period from 1988 to 1993, the Scheme was governed by the Fourth Report of the Joint Committee, dated 1 January 1987 (No 7/11 of process). Under the Scheme training programmes, lasting three or four years, are recognized in each of the major surgical specialities. Once such training has been completed, the aspiring consultant surgeon is granted accreditation as a specialist in the relevant surgical discipline by the Royal College of which he or she is a Fellow. The petitioner was accredited as a specialist in general surgery by the respondents in November 1993. His accreditation was, however, retrospective, since he had carried out his specialist training some years previously.The Scheme for Higher Surgical Training
[2] In order to understand the issues in the present case it is necessary to have some knowledge of the Scheme for Higher Surgical Training in force between 1987 and 1995. As mentioned in the last paragraph, the Scheme was controlled by the JCHST. Its basis was the evolution and recognition of higher training programmes, lasting three to four years, in each of the major surgical specialities. These programmes had the object of accrediting the completion of surgical training in a speciality for those who would normally be seeking consultant appointments in that speciality. A number of specialities were covered; that relevant to the petitioner was general surgery. Trainees who were granted accreditation after satisfactory completion of a training programme were regarded by all College assessors or their equivalents on advisory appointments committees as having met the criteria for consultant status. [3] A number of Specialist Advisory Committees (SACs) were set up to advise the JCHST in relation to procedures for higher surgical training. The SACs consisted of representatives of the relevant specialist association and members appointed by the Colleges of Surgeons. They fulfilled a number of functions. They recommended to the JCHST outline training programmes for each speciality. They also drew up, after inspection where necessary, a list of posts where programmes of training could appropriately be carried out. That involved regular inspections of programmes and the hospitals where such programmes were carried out. The posts in question were substantive posts; they did not include locum posts. That is clear from a letter dated 14 July 2000 sent by Mrs Tara Willmott, Secretary to the JCHST, to the Medical Director of Bradford Royal Infirmary in relation to the petitioner's case (No 6/27 of process). That letter is expressly founded on by the petitioner in his pleadings, and I think, in view of its source, that I can rely on the information contained in it. In that letter Mrs Willmott stated that the SACs "numbered those individual[s] who had been appointed to substantive Senior Registrar posts". The fact that only substantive posts were included in the recognised programmes is significant in view of the way in which the arguments for the parties developed. The SACs also kept a numerical register of trainees, with details of their experience, and made recommendations to the appropriate Colleges in relation to the accreditation of candidates who had carried out approved programmes. Thus the SACs, in conjunction with the JCHST, were responsible for determining the posts that were suitable for higher surgical training. Two different types of post were relevant for this purpose, hospital posts at senior registrar level and lecturing posts in universities at senior registrar level. Those occupying both types of post undertook similar clinical training. [4] A further body involved in the Scheme was the Joint Planning and Advisory Committee (JPAC), which consisted of representatives from the National Health Service, academic research bodies and the Surgical Colleges. The function of JPAC was to determine the number of posts available for senior registrars or lecturers with senior registrar status in such a way as to satisfy the needs of the NHS and to provide a balanced career structure for those who wished to become consultant surgeons. The number of senior registrar and equivalent posts was linked with the likely availability of consultancy posts. In order to fulfil this basic function, the JPAC and SACs adopted a system of allocating what were known as national training numbers and career numbers (described in Nos 6/27 and 7/14/53 of process; the last paragraph of 6/27 and pp 3 and 4 of 7/14/53 are significant). National training numbers, sometimes referred to as SAC numbers or SR numbers, were allocated to persons holding posts at senior registrar or equivalent level that had been approved for higher surgical training by the relevant SAC. The posts that were given such approval, and whose holders were allocated SAC numbers, were substantive posts, not locum posts; that is made clear in Mrs Willmott's letter of 14 July 2000 (No 6/27 of process). Career or career registrar numbers, sometimes referred to as CR numbers, were given to individuals, currently at Registrar level, who aspired to speciality training. Any registrar whose earlier training and qualifications indicated that he or she might be eligible for a substantive post was given a career number. The career numbers, however, were essentially statistical tools, to keep track of the career progression of trainees. They were not related to the holding of a substantive post. Consequently the allocation of a career number did not mean that the holder was in a post that counted for the purposes of the system of higher surgical training. The indication that a post counted for that purpose was the allocation of an SAC SR number to its holder (No 6/27 of process). [5] The Fourth Report of the JCHST (No 7/11 of process) had appended a list of training programmes recognised to date. These were the substantive posts identified by the relevant SAC and those holders were allocated SAC numbers in the manner described in paragraphs [3] and [4] above. The report further stated (page 3) that, on appointment to a senior registrar or lecturer post within one of these programmes, trainees should enrol with the appropriate SAC as soon as possible. That would obviously lead to the allocation of an SAC number. In relation to the content of the training programmes, the report provided as follows (pages 4-5):"(1) In order to qualify for accreditation, candidates must have completed... four years (... General Surgery...) in their chosen specialty in posts that have been approved by the appropriate Specialist Advisory Committee.
(2) Candidates for accreditation must be enrolled for specialist training by the appropriate Specialist Advisory Committee.
(3) The Joint Committee will obtain written evidence from the surgeons under whom they have worked that in their opinion that work has been satisfactory.
(4) A period of the equivalent of... one year in the case of General Surgery... spent in a university department or in another approved centre working in one of the basic sciences relevant to the chosen specialty is actively encouraged and will be approved as part of the training period".
In relation to General Surgery, the Fourth Report provided as follows (page 6):
"The following regulations apply to the four years training period:-
(a) At least three years must be spent as a Senior Registrar or in a post of equivalent responsibility and training potential. The post should rotate through units offering both academic and NHS service commitments.
(b) The remaining year can be in a post approved by the SAC at Registrar level provided that it is held in the post-Fellowship period. This period may be in a clinical or a research post".
In all cases, the posts held required to be approved by the relevant SAC, as specified in paragraph (1) of the general regulation and paragraph (b) of the regulation relating to General Surgery. As indicated above, the holder of any such post would be allocated an SAC SR number. The holding of a career number was not relevant for this purpose.
The petitioner's history
[6] Prior to 1993 the petitioner had gone to New Zealand to work as a consultant surgeon there; his practice was concentrated in the field of breast cancer. In 1995 a question had arisen in New Zealand about his qualifications, and the Australasian College of Surgeons made inquiries of the present respondents on the matter. On this occasion the respondents, after investigating the matter, replied that the petitioner had been properly granted specialist accreditation. Thereafter the petitioner returned to the United Kingdom, and obtained a post as a consultant surgeon at Bradford Royal Infirmary. During 1999 a question was raised within that hospital as to the petitioner's specialist accreditation. It appears that inquiries were made initially with the JCHST, and they directed the questions to the present respondents, since it was the respondents who had been responsible for granting the petitioner's specialist accreditation. Consideration was given by the respondents as to whether they were responsible for review of the petitioner's accreditation. Ultimately they decided that they were, as they were the body that had granted the accreditation. On 22 June 2000 the Chief Executive of Bradford Hospitals NHS Trust wrote to the President of the respondents querying the petitioner's specialist accreditation and asking the respondents to advise him on the matter. [7] Thereafter, on 2 August 2000, the Chief Executive of the respondents, Mr J R C Foster, wrote to the petitioner (No 7/13 of process, annex B) to state that, unless the petitioner could provide evidence by 18 September 2000 to verify his claim to have held a substantive senior registrar position, Mr Foster would have to recommend to the respondents' Council at the meeting of 3 October 2000 that the petitioner's accreditation should be withdrawn. A reminder was sent on 5 September 2000. The respondents' Council met on 3 October 2000, and considered the petitioner's specialist accreditation at that meeting. The relevant part of the minutes (No 6/5 of process) is as follows:"The Chief Executive explained briefly the background to Mr Phipps' case and the current concern about his competence. It was clear that a number of entries on the CV, submitted by Mr Phipps in 1993 to support his retrospective accreditation, were incorrect.
There was still some element of doubt surrounding the SAC's recommendation to support his accreditation and, in particular, a letter from Mr Grant (the then Secretary of the JCHST).
Nevertheless, there was a weight of evidence that Mr Phipps CV had misled the SAC and Council were minded to withdraw his accreditation. There was no precedent to such an action and the procedure was not clear. Mr Foster would write to Mr Finlay Scott (Chief Executive, General Medical Council) reporting the circumstances".
"I regret to say that as a result of this investigation it is now apparent that Mr Phipps did not complete the training necessary for accreditation and that certain facts were misrepresented on his record card and CV".
In that letter Mr Foster clearly treated the Council's provisional decision as definitive. The letter further stated that members of the respondents' Council "were minded that in the interests of safety Mr Phipps' accreditation should be withdrawn pending a full enquiry". Prior to that date the relevant National Health Service Executive had been informed of what had happened. On 12 October the NHS Executive had issued an alert letter to all health authorities within the Northern & Yorkshire Region to state that, if the petitioner applied for a post, they should contact the Chief Executive of the Bradford Hospitals NHS Trust. The petitioner was dismissed by Bradford Hospitals NHS Trust for gross personal misconduct, and was reported to the GMC. The ground for these actions was that the petitioner was not entitled to be appointed as a consultant but had represented that he was (as reported in a letter of 24 November 2000 from the relevant NHS Executive to the BMA, found at No 6/30 of process). Since then the petitioner has been unable to find work as a surgeon.
[9] On 15 November 2000 Professor Sir John Temple, the then President of the respondents, contacted the GMC in relation to the petitioner. The terms of his telephone call were recorded by Sarah Bedwell, the employee of the GMC who received the call, in the following terms (No 6/9 of process):"He is extremely concerned that Mr Phipps is a danger to patients. Mr Phipps has been summarily dismissed by his Trust, was struck off in New Zealand and deliberately lied in his applications for College Membership. Professor Temple believes Mr Phipps may be seeking locum work".
If that is a correct note of the conversation, it is clear that Professor Temple went well beyond anything that had been decided by the respondents' Council. Not only did he fail to have regard to the provisional nature of the Council's decision; he also made an allegation of fraud against the petitioner which was in no way justified by the terms of that decision. Indeed, on 14 November 2000 Mr Foster, who had had a meeting with the petitioner during the preceding week, accepted in a letter to the petitioner (No 7/13 of process, annex F) that there were "two sides to the story".
[10] Notwithstanding the position taken by the respondents' representatives following their Council meeting of 3 October 2000, they entered into discussions and correspondence with the petitioner and his English solicitors. Eventually they set up a tribunal consisting of three members to look into the validity of the petitioner's specialist accreditation; the decision to set up the tribunal was intimated to the petitioner by a letter of 5 February 2001 (No 6/46 of process). The tribunal met on 21 June 2001. On this occasion the petitioner was present and was represented by counsel, and written evidence was presented on his behalf. The decision of the tribunal, however, was to recommend that the petitioner's specialist accreditation should be withdrawn. Certain discussions then took place as to a possible appeal against the recommendation, and on 25 October 2002 the petitioner lodged an appeal with the respondents. A disagreement arose as to the scope of the appeal, however. The petitioner wanted his post-training experience in New Zealand and the United Kingdom to be taken into account, but the respondents refused to consider that issue unless he produced evidence from the health authorities for whom he had worked, and the petitioner did not produce any such evidence. (He had in fact left posts in New Zealand and Bradford in relatively acrimonious circumstances). On 23 December 2002 Mr Foster wrote to the Chief Executive of the General Medical Council as follows:"You may recall that on 2 July 2001 I wrote to you regarding the outcome of the tribunal held in Edinburgh on 20 June 2001. The tribunal upheld the view of the Council of the Royal College of Surgeons of Edinburgh that Mr Phipps accreditation, awarded retrospectively in 1993, had been awarded in error and should thus be withdrawn. After further correspondence, it was agreed that no further action would be taken pending any appeal by Mr Phipps.
However, no such appeal has been received.
On 13 December 2002 the matter was considered again by the Council of the College and, in view of the fact that no appeal had been received, Council reaffirmed their decision that Mr Phipps' accreditation should be withdrawn. I should thus be grateful if the GMC would now take appropriate action" (No 6/22 of process).
A copy of that letter was sent to the petitioner.
The petitioner's challenge to the tribunal's decision
[11] The petitioner has raised the present proceedings to challenge the decision of the respondents to withdraw his specialist accreditation. He relies on five grounds of challenge. In the first place, it is said that the procedures set up by the respondents to consider the petitioner's accreditation were insufficiently clear. In the second place, the petitioner contends that the respondents failed to observe the requirements of natural justice, and in particular failed to give fair notice of the complaint against the petitioner. That related in particular to the respondents' failure to give notice that fraud would be in issue in the proceedings before the tribunal. In the third place, the petitioner challenges the substance of the respondents' decision to remove his accreditation; he contends that the decision was unreasonable. In the fourth place, the petitioner argues that the respondents made an error of fact which vitiates and their decision to remove his accreditation. In the fifth place, the petitioner contends that the respondents erred in law in reaching their ultimate decision on 13 December 2002 to remove his specialist accreditation, in that they merely reaffirmed a previous decision rather than considering the issue afresh on the basis of the tribunal's report. I will deal with each of these matters in turn.
Procedure followed by tribunal and criteria for removal of accreditation
[12] In advancing the contention that the procedure set up by the respondents was insufficiently clear, counsel for the petitioner referred to five matters, although ultimately I understood his complaint to relate only to the third, fourth and fifth of these. First, counsel submitted that it was not clear which body was responsible for dealing with accreditation. Secondly, it was submitted that it was not clear which body was responsible for conducting any appeal in relation to accreditation. Thirdly, it was said that the respondents failed to set up clear procedures to deal with the challenge to the petitioner's accreditation. Fourthly, counsel submitted that the respondents failed to lay down any clear criteria for the removal of accreditation. Fifthly, it was submitted that the issue of fraud on the part of the petitioner had played a part in the tribunal's decision, but that the petitioner had not been given adequate notice that his good faith was in issue. [13] In relation to the first of these, I am of opinion that it was it was the respondents, rather than any other body, who were responsible for any withdrawal of the petitioner's accreditation. They had granted that accreditation in the first place, in accordance with the Scheme for Higher Surgical Training, and it must follow that they were responsible for reviewing the validity of their decision. From 1995 onwards responsibility for granting accreditation had in fact been transferred to a body known as the Specialist Training Authority, but in the petitioner's case the problem related to the validity of an accreditation that had been granted previously by the respondents. Review of the validity of an old accreditation is a different matter from the grant of a new accreditation, and there are obvious practical reasons for keeping such review with the body that granted the old accreditation, at least in default of any express transfer of responsibility for review to the Specialist Training Authority. It was not suggested in the course of argument that there had been any such express transfer. In the event, counsel for the petitioner did not appear to press this ground of challenge. [14] In relation to the appeal from the respondents' initial decision, there had been some doubt as to whether the appeal should be conducted by the respondents or should be to the Specialist Training Authority. Ultimately the respondents decided that they should be responsible for the appeal. It was proposed that Professor Sir John Temple, their then President, should preside over the appeal. In view of the correspondence referred to in paragraph [9] above, it would in my opinion have been wholly inappropriate for him to have anything to do with the appeal. That is irrelevant, however, as the appeal did not proceed. An appeal was lodged on the petitioner's behalf, but differences arose between the petitioner's advisers and the respondents as to the requirements of an appeal. The petitioner wanted the respondents to take into account his experience since 1992. The respondents, however, contended that an appeal on that basis could only be entertained if the petitioner produced evidence from health authorities for which he had worked since 1992, and the petitioner was unable, or unwilling, to produce such evidence. In addition, the petitioner wanted the respondents to consider exercising a discretion to waive the requirements of the JCHST Fourth Report, but the respondents were not willing to do so. In the event, I did not understand counsel for the petitioner to submit that the differences between the parties as to the appeal procedure could of themselves vitiate the decision of the respondents to remove the petitioner's accreditation. [15] Counsel for the petitioner did, however, maintain his attack on the procedures followed by the respondents and on the lack of clear criteria for the removal of accreditation. This part of the case turns on the meaning of certain letters that passed between the respondents on one hand and the pursuer and his English solicitors, Messrs Chadwick Lawrence, on the other hand. I will begin by setting out the terms of that correspondence so far as material. First, on 5 February 2001 Mr Foster wrote to the petitioner (No 6/46 of process) to state that the respondents considered that they had jurisdiction in respect of the validity of the petitioner's accreditation. He went on to state that the respondents would form a tribunal "to examine your training history prior to 1993 and assess whether or not your accreditation is valid". Thereafter correspondence passed about the composition of the tribunal, in which Messrs Chadwick Lawrence raised the question of the petitioner's position in New Zealand between 1990 and 1993. Mr Foster replied on 6 March 2001 (No 6/35 of process) to state that "the remit of the tribunal is to determine whether or not Mr Phipps completed the necessary training to merit accreditation. The post at Dunedin was not relevant". On 28 March 2001, Mr Foster wrote to the petitioner (No 7/13 of process, Appendix I) to state that the tribunal hearing would take place on 11 April, some two weeks thereafter. There was appended to the letter a note that was said to give the background to the matter and the remit of the tribunal. This was in the following terms:"Background
In November 1993, the Specialist Advisory Committee in General Surgery recommended, through the Joint Committee on Higher Surgical Training to the Royal College of Surgeons of Edinburgh that, having completed satisfactorily a period of higher surgical training, Mr Robert Francis Phipps, a Fellow of the Royal College of Surgeons of Edinburgh, should be accredited in General Surgery.
In June 2000 it was represented to the College by a former employer of Mr Phipps that there were discrepancies between the career history contained in Mr Phipps' CV and the records held by former employers. The implication being (sic) that Mr Phipps may not have completed the necessary training to merit accreditation and that the award may have been given in error.
The Tribunal
It is incumbent on the College to investigate the allegations made against Mr Phipps and it is thus intended to form a tribunal whose remit will be:-
to review Mr Phipps' training record between 1983 and 1990 and advise the Council of the College as to whether Mr Phipps' training achievements satisfied the Joint Committee on Higher Surgical Training requirements for higher surgical training as specified in their Fourth Report, dated 1 January 1987".
I observe that the last paragraph quoted above appears to be an attempt to set out the matter remitted to the tribunal for its decision.
[16] Chadwick Lawrence replied by letter dated 3 April that the petitioner could not be properly represented at such a hearing in view of the proposed time scale. On 5 April 2001 (No 7/13 of process, Appendix J) Mr Foster wrote to Chadwick Lawrence to propose that the tribunal should not meet until 20 June 2001. The English solicitors had also criticized the statement of the petitioner's case and asked for a copy of the rules applicable to the tribunal's hearing. In his letter of 5 April 2001, Mr Foster responded to those points as follows:"I also note your point about the statement of the case. However, in fact, there is no case per se for or against Mr Phipps. The allegation is that his training programme did not meet the requirements for the award of a certificate of accreditation by the College. The purpose of the tribunal is to examine Mr Phipps' CV and advise Council on the validity of the allegation....
You also ask for a copy of the internal rules applicable to College procedures. In fact there is no precedent to (sic) this particular problem; however, we do have guidance notes for tribunals held in respect of mediated entry into the GMC Specialist Register and I propose to modify them to suit this particular case. I will forward you a copy of this procedure as soon as it is available".
".... the nub of this matter... is whether or not Mr Phipps completed adequate training for the award of a certificate of completion of higher surgical training. The purpose of the tribunal is to take an objective view at Mr Phipps' training record and make recommendations accordingly.
In the meantime, I attach an outline of how the tribunal would be managed. I would be very happy to receive any comments you have on this - it is, of course, important that Mr Phipps accepts that these proceedings will be fair and open. You will note in Appendix Eight, paragraph 3 that I referred to an outline of the positions held by Mr Phipps in logical order from his election to FRCSEd in 1983 to the completion of his post at the Royal Marsden Hospital in May 1990. The accuracy of this list is clearly crucial to the whole matter. I will, thus, forward it to you tomorrow (22 May 2001) and I would welcome, as soon as possible, any comments that you or Mr Phipps may wish to make about its accuracy".
There was appended to that letter a document described as a briefing note for tribunal members. This document was headed.
"A tribunal to evaluate the higher surgical training record of Mr R. F. Phipps In order to:
Assess the validity of the certificate of completion of higher surgical training that was awarded retrospectively to Mr Phipps, on the recommendation of the SAC in General Surgery, in November 1993.
Recommend any further action by Council of the Royal College of Surgeons of Edinburgh".
Once again, that appears to be an attempt to set out the matter remitted to the tribunal. The briefing note further stated certain rules that were to govern the proceedings before the tribunal; these dealt with representation, witnesses and evidence. They made it clear that the petitioner had the right to be represented at the hearing and to call witnesses. All written evidence was to be submitted in advance. Apart from one or two matters that were clarified two days later in a further letter from the respondents, the rules put forward were perfectly intelligible, and counsel for the petitioner did not subject them to any detailed criticism.
[18] On 23 May 2001 Mr Foster wrote further to Chadwick Lawrence (No 6/42 of process) in the following terms:".... I attach an extract from the JCHST Fourth Report dated 1 January 1987 which specifies the criteria for accreditation in General Surgery. I also include a table, which lays out the training positions that Mr Phipps held post Fellowship as stated in his CV and record card. It is my intention to submit to members of the tribunal observations on each of these posts for their consideration and you will be sent copies of these".
The members of the tribunal were then set out, together with details of the date and time of the hearing. The letter continued by proposing certain amendments to the rules of procedure contained in the briefing note appended to the letter of 21 May 2001. On this matter, I observe that the amendments appear to be intelligible, and clear up certain obvious problems with the original rules. A copy of the relevant extract from the JCHST Fourth Report, referred to in the letter of 23 May, is included among the productions as part of No 7/5 of process; this set out the relevant criteria for specialist accreditation in general surgery. Finally, the table referred to in the letter of 23 May is also found as part of No 7/5 of process. I will set this out in full because I think that it is an important part of the case against the petitioner.
"There follows a summary of Mr Phipps's training post fellowship. The entries are drawn from the CV and record card submitted by Mr Phipps to the SAC on General Surgery together with information obtained from Mr Phipps's pension record and also that provided by former employers:
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RECORD CARD |
POSITION |
PLACE |
OBSERVATION |
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October 1983 1 year |
Registrar |
Kent & Canterbury Hospital |
Confirmed that he held the position of registrar from 1 Oct 1983 to 2 Oct 1984 |
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October 1984 1 year |
Registrar |
St Thomas's Hospital |
Confirmed that he held the position of registrar from 3 October 1984 until 5 October 1985 |
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January 1986 18 months |
Research Fellow/SR |
Queen Alexandra Hospital |
See summary below |
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Pension records indicate that during this period Mr Phipps worked as a: Locum Registrar -- 07 Oct 1985 to 5 Jan 1986 Bro Tas HA Cardiff Registrar -10 Mar 1986 to 19 Mar 1986 -- South West London Registrar - 01 May 1986 to 16 Aug 1986 - Portsmouth Research Fellow -- 17 Sep 1986 to 30 Oct 1987 -- Portsmouth |
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August 1987 5 months |
Senior Registrar |
Queen Alexandra Hospital |
See summary below |
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January 1988 5 months |
Senior Registrar |
St Helier Hospital |
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This period seems to be confused however, pension records indicate that Mr Phipps worked as a: Registrar - 04 Dec 1987 to 16 Dec 1987 - South West Reg. HA Locum SR - 28 Dec 1987 to 01 Jan 1988 Registrar - 02 Jan 1988 to 07 Feb 1988 - South West London Locum SR - 08 Feb 1988 to 12 Feb 1988 Registrar - 13 Feb 1988 to 31 Mar 1988 Locum SR - 01 Apr 1988 to 22 Apr 1988 |
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May 1988 to May 1990 |
Senior Registrar |
Royal Marsden Hospital |
This was a locum SR Post Throughout. |
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Finally, on 18 June 2001 Mr Foster wrote to Chadwick Lawrence to confirm that references that the petitioner had obtained from two of the surgeons responsible for his training, Mr McKenna and Mr Griffiths, would be presented to the tribunal. Mr Foster further stated in that letter that the respondents did not contemplate any witnesses, but that he intended to present certain documents, specified in an addendum to the letter, to the tribunal.
[19] Counsel submitted that the respondents' approach to procedure was disorganised at best. They had never previously had in place a procedure for the determination of a dispute over accreditation. Consequently they required to create a procedure to deal with the petitioner's case, but they failed to do so properly; in particular, they did not have in place any procedure that was accessible and foreseeable. Thus the procedures that they adopted failed to meet the criterion of legality as required by, in particular, article 6 of the European Convention on Human Rights and section 6 of the Human Rights Act 1998. In this connection reference was made to Koenig v Germany, (1978) 2 EHRR 170, at paragraphs 87, 91 and 93-95, to Sunday Times v United Kingdom, (1979) 2 EHRR 245, at paragraphs 42, 46 and 48-49, and to Al-Nashif v Bulgaria, (2003) 36 EHRR 655, at paragraphs 117-119. In the last case, the European Court of Human Rights indicated, at paragraph 119, that the phrase "in accordance with the law" implies that the legal basis on which a court or tribunal will be accessible and foreseeable. The effects of a legal rule will be foreseeable if the role is formulated with sufficient precision to enable any individual to regulate his conduct. Counsel submitted that neither the procedure that was to be followed by the tribunal nor the question that the tribunal had to decide was formulated with sufficient clarity to satisfy this fundamental test of legality. [20] In my opinion the correspondence referred to in paragraphs [14]-[17] above gave the petitioner and his advisers sufficient notice both of the question that was to be decided and of the procedure that the tribunal was to follow. The question for decision is set out both in the note appended to the respondents' letter of 28 March 2001 and in the briefing note appended to the respondents' letter of 21 May 2001. In the first of those documents the tribunal's remit is said to be to review the petitioner's training record between 1983 and 1990 and to advise the respondents' Council as to whether it satisfied the JCHST Fourth Report. In the second document, the tribunal's task is described as assessing the validity of the petitioner's certificate of completion of higher surgical training and recommending any further action. While these statements of the remit are not identical, I think that it is quite clear what the tribunal was intended to do: its task was to examine the petitioner's training record, to discover whether that record satisfied the criteria in the JCHST Fourth Report, and to recommend further action by the respondents' Council. That is in my opinion a perfectly intelligible task, and I do not consider that any further specification is required. [21] In relation to procedure, it is important to bear in mind that the procedures followed by a domestic tribunal such as that set up by the respondents need not be, and usually should not be, complex. Ultimately three things are required in a case such as the present. First, the case that the member who is the subject of proceedings is required to meet must be set out in sufficient detail to let him prepare a reply. Secondly, the member must be given an adequate opportunity to present his reply, if necessary by giving evidence. Thirdly, the tribunal must be given an adequate opportunity to consider both the case made against the member and his reply in order to reach their decision, and must obviously consider the evidence and contentions for both parties. Provided that these three essential requirements are met, there is no need for any detailed rules of procedure. [22] In the present case I am of opinion that the procedures followed by the tribunal met all three of the foregoing requirements. The essence of the respondents' case against the petitioner is summarized in the documents referred to in the preceding paragraph, which made it clear that the contention against him was that he had not completed the training required according to the criteria in the JCHST Fourth Report. The details of the training that the respondents understood the petitioner had undergone are set out in the table that I have set out in full at paragraph [18] above. That table contains the detailed information that the respondents had about the petitioner's training. In my opinion the combination of the basic contention and the details given in the table, together with the relevant text of the JCHST Fourth Report, gave ample notice of the case that the petitioner had to meet. It is equally clear in my view that the petitioner was given an adequate right of reply. He was entitled to be represented at and to present written and oral evidence to the tribunal. In fact he lodged written documents in advance of the hearing, including a written statement of his evidence, and was represented by English counsel when the tribunal met. The petitioner was present at the hearing and played some part in it, although his case was largely presented by counsel. I am unable to see any defect in his right to respond to the respondents' contentions. Finally, it is clear that the tribunal heard detailed submissions for both the respondents and the petitioner, considered those and produced detailed recommendations to the respondents' Council (part of no 7/14/52 of process). That is in my opinion sufficient to satisfy the third requirement. It follows that the petitioner's attack on the procedure followed by the tribunal is misconceived. I am further of opinion that the criteria against which the petitioner's qualifications were to be tested were adequately stated; they were those set out in the Fourth Report of the JCHST. That was clear from the correspondence that passed before the tribunals hearing, and it is also clear that the tribunal itself assessed the petitioner's training against those criteria.
Breach of the principles of natural justice: failure to give notice that fraud was in issue
[23] Counsel contended that the respondents had failed to give the petitioner adequate notice that fraud would be in issue at the tribunal hearing. The starting point for the submission was the respondents' answer 11, which refers to the tribunal's recommendations of 20 June 2001 and then goes on to state:"Explained and averred that in terms of the said recommendations, there was a clear implication that the Petitioner had put forward deliberately misleading information. Any finding of fraud was not within the remit of the Tribunal. The recommendations give the clear inference that the Petitioner deliberately misled the SAC into giving him accreditation".
Counsel for the respondents stated at the outset of his submissions that any question of fraud or dishonesty on the part of the petitioner had nothing to do with the decision of the tribunal, and was not pled in justification of that decision. If such a question arose, it was a matter for the GMC only. In so stating, counsel appeared to be trying to distance his submissions from the averments that I have quoted from answer 11, no doubt because he had not been responsible for inserting them and realized the difficulties that they created. I am bound to say that I am completely at a loss as to why those averments were ever introduced. At best they confuse issues that are quite complicated enough without them. At worst they involve a gratuitous allegation of fraud that does not appear to be justified by the tribunal's decision. I think that counsel who appeared for the respondents at the first hearing was quite right to distance himself from the averments in question.
[24] Counsel for the petitioner submitted that, if fraud was in issue before the tribunal, that was not made clear in advance. An allegation of fraud is an important matter, and the result was that the petitioner had been given seriously inadequate notice of the case against him. The issue of fraud had clearly been raised by the respondents some time prior to the tribunal hearing. In his letter of 13 October 2000 to the Chief Executive of the GMC (No 6/8 of process, referred to at paragraph [8] above), Mr Foster stated that certain facts were misrepresented on the petitioner's record card and CV. That of course does not go as far as an allegation of fraud, as it leaves open the possibility of innocent misrepresentation. It is clear that there was scope for misunderstanding the requirements of the Fourth Report of the JCHST, and indeed there was some indication that the petitioner had misunderstood those requirements in certain rather important respects. Innocent misrepresentation was thus a real possibility. On 15 November 2000, however, Professor Sir John Temple, the then President of the respondents, telephoned Miss Sarah Bedwell, an employee of the GMC. The terms of the conversation were recorded by her, and are found in a GMC internal memorandum prepared by her (No 6/9 of process); I have set out the material part of her record in paragraph [9] above. Professor Temple provided an affidavit (No 7/12 process) dealing with his involvement in the case. In this affidavit he stated, in relation to the record of the conversation prepared by Miss Bedwell, that it was possible that he had said that the petitioner had deliberately lied. I have obviously not heard evidence on this matter. Nevertheless, for present purposes I think that I can safely conclude that Professor Temple did allege to the GMC that the petitioner had been guilty of fraud. Miss Bedwell would have had no obvious reason to record an allegation that the petitioner deliberately lied unless it had been made by Professor Temple, and indeed such an allegation is so extreme that it is highly improbable that she would have recorded it had it not been made. Professor Temple's own account, as recorded in his affidavit, is vague, and indeed evasive. It does not, however, contain any denial that an allegation of fraud was made. [25] Such an allegation is, as I have said, a serious matter. Any allegation of fraud by Professor Temple was clearly made before the petitioner's case had been adequately investigated. On the basis of the documentary evidence that is available, I can discover no adequate basis for the making of such an allegation. Nevertheless, while Professor Temple is open to criticism for making such an allegation before the matter had been fully investigated, he did not sit on the tribunal, and the critical question must be whether any allegation of fraud was live before the tribunal. When the tribunal's decision, which is set out in full in paragraph [26] below, is considered, I do not think that it carries any inference of fraud. The tribunal were concerned to address the questions remitted to it, which are those set out in paragraph [20] above. There is nothing in their decision to suggest that they addressed any wider question. Nor is there anything in the record of the proceedings before the tribunal kept by an employee of the respondents (found at No 7/14/52 of process) to suggest that any wider issue involving fraud was addressed. No doubt the tribunal came to the conclusion that the petitioner's record card was inaccurate. Nevertheless, that leaves open the question of whether any inaccuracy was the result of deliberate misrepresentation of the position, or whether it resulted from a lack of understanding, whether on the part of the petitioner or the respondents or the SAC, of precisely what was required to satisfy the requirements of the JCHST Fourth Report. The tribunal did not address that issue, and there is no indication to suggest that it was put before them, by Mr Foster or anyone else. For this reason I conclude that this ground of challenge fails. I need hardly add that, if fraud had been in issue in the proceedings before the tribunal, adequate notice should have been given.Reasonableness of respondents' decision
[25] The tribunal's conclusion and recommendations were in the following terms:"RECOMMENDATIONS TO COUNCIL FOLLOWING TRIBUNAL TO REVIEW THE AWARD OF ACCREDITATION TO MR PHIPPS
This tribunal has been convened in order to:-
Assess the validity of accreditation of higher surgical training that was awarded retrospectively to Mr Robert Francis Phipps on the recommendation of the SAC in General Surgery in November 1993.
Recommend any further action to the Council of the Royal College of Surgeons of Edinburgh.
The following form the basis of our conclusions:-
There are a number of concerns about the details of Mr Phipps' training record as presented to the SEC. The decision made by the SEC in granting accreditation appears to have been based on misleading information.
Mr Phipps' training record states that he underwent five months of training from August 1987 at the Queen Alexandra Hospital and St Mary's Hospital in Portsmouth at Senior Registrar level. In reality it appears that only a few short periods were carried out at Locum/Senior Registrar level and the rest at various other grades to cover a series of holidays and other absences.
Mr Phipps' training record states that he underwent five months of training from January 1988 at St Helier Hospital at Senior Registrar level. Again, in reality it appears that only a few short periods were actually carried out at Locum Senior Registrar level to cover a series of holidays and other absences. Mr Phipps' training record states that he underwent a two-year period from 1988 to May 1990 as Senior Registrar at the Royal Marsden Hospital. Notwithstanding the fact that both Mr Phipps and his trainers were under the impression that the Senior Registrar post filled by Mr Phipps at the Royal Marsden was a substantive post, in reality this was a Locum Senior Registrar Appointment.
Following the SAC visit to the Royal Marsden Hospital in October 1988, the report recommended that the post should only be recognised for Senior Registrar training for a period of six months in the generality of surgery, since there was virtually no exposure to emergency surgery. Recognition might be given for 12 months for a trainee training in the speciality of surgical oncology. The trainers should have received a copy of this Report; trainees would be entitled to see the report but this may not have occurred. Some confusion over training numbers existed. At the SAC visit in October 1988 the question of numbers arose. Mr Phipps wrote to Professor Browse and from that letter dated 30 October 1988 and Professor Browse's response, it is clear that Mr Phipps knew he was in an anomalous post as a Locum Senior Registrar at the Royal Marsden and understood 'that it would be obligatory to have a numbered post in order to apply for a Senior Registrar post'. Mr Phipps was advised by Professor Browse that he should attempt to obtain a substantive Senior Registrar post as soon as possible. He was interviewed by the Regional Training Committee in January 1989 and documentation states that he should only be awarded a Career Registrar number for one year. Mr Phipps states that he did not receive this documentation. However, he did receive a letter dated 7 February 1989 headed 'Your application for a Career Registrar number in General Surgery'. This stated that he had been awarded a CR number (Career Registrar number) which would be subject to annual review. Despite this letter clearly referring to a Career Registrar number, Mr Phipps erroneously assumed that he was now in a substantive Senior Registrar post. No attempt was made to correct this assumption or to obtain confirmation of this in writing. He did not enrol with the SAC as would have been required on gaining a substantive Senior Registrar post.
Conclusion
On the purely technical matter as to whether Mr Phipps had fulfilled the requirements for accreditation as laid down by the Fourth Report of the Joint Committee on Higher Surgical Training, dated 1987, and on the basis of the above, the tribunal do not feel that the accreditation is valid. It is our opinion that had the SAC in General Surgery been aware that all the SR posts listed in his JCHST application were locum and not substantive, Mr Phipps would not have been awarded retrospective accreditation. Our recommendation to the Council of the Royal College of Surgeons of Edinburgh is that Mr Phipps' accreditation be withdrawn.
This decision is not a reflection on Mr Phipps' extensive experience in specialised breast surgery.
We do not wish to comment on the extent of any additional training required since this does not fall within the remit of this tribunal".
The above text is taken from No 6/13 of process. Another version appears at the end of No 7/14/52 of process. The version at 6/13, however, is slightly fuller, especially in the paragraph that expresses the tribunal's conclusion. I think, therefore, that it is that version that is definitive, especially as the sense of the conclusion is slightly better expressed in it; that suggests that it is a revised version.
[24] Paragraph B refers to the report of the SAC visit to the Royal Marsden Hospital in October 1988; this is the document No 6/48 of process, which is discussed in paragraph [30] below. Paragraph C refers to the petitioner's correspondence with Professor Browse in the latter part of 1988. The first of these letters, dated 30 October 1988 (No 7/14/1 of process), is a letter from the petitioner to Professor Browse, the then Chairman of the SAC in General Surgery. The petitioner stated that he was currently Locum Senior Surgical Registrar in the Royal Marsden Hospital and had recently been interviewed during the inspection of the Hospital. The petitioner stated his understanding that it would be obligatory to have a numbered post in order to apply for a Senior Registrar position. He asked for help as he considered working at the Marsden as a Locum Senior Registrar to be a slightly anomalous position. Professor Browse replied by letter dated 7 November 1988 (No 7/14/2 of process). In that letter, Professor Browse wrote:"You are, indeed, in a difficult situation as a Locum Senior Registrar and, as I am sure your realise, you should attempt to obtain a substantive Senior Registrar post as soon as possible".
Thus it appears that the petitioner was alerted to the fact that holding a locum post placed him in a difficult situation, and that he should attempt to obtain a substantive post.
[25] It can be seen from the tribunal's conclusion and recommendations that their concern was with the petitioner's training record, and in particular whether that record satisfied the requirements of the Fourth Report of the JCHST. They decided that the petitioner's posts at Senior Registrar level at the Queen Alexandra and St Mary's Hospitals in Portsmouth and at the St Helier Hospital were locum posts, and were not held for as long a period as the training record indicated. I did not understand that to be in dispute. The tribunal also decided that the petitioner's time at the Royal Marsden Hospital was in a locum Senior Registrar post. The basis for the decision appears to be that stated in the main paragraph of their conclusion, namely that as a purely technical matter the petitioner had not fulfilled the requirements for accreditation laid down in the Fourth Report of the JCHST. On that basis the tribunal concluded that the accreditation was invalid. The tribunal commented that in their opinion, had the SAC in General Surgery been aware that all the Senior Registrar posts listed in the petitioner's JCHST application were locum and not substantive, he would not have been awarded retrospective accreditation. The tribunal accordingly recommended that the petitioner's accreditation should be withdrawn by the respondents. [26] Counsel for the petitioner attacked the reasonableness of the tribunal's decision. His starting point was the principle omnia praesumuntur rite esse acta. When the petitioner was granted specialist accreditation, the SAC had made a recommendation to the respondents through the JCHST. The decision of the respondents that was being challenged involved the review of that decision, and the exercise of review had to be considered against the background of the presumption embodied in the principle omnia praesumuntur. In this connection, the tribunal had expressly found, in the second last paragraph of their decision, that they had no criticisms of the petitioner's experience in specialised breast surgery, the particular field in which he had specialised. In addition, the petitioner had produced to the tribunal two references from the consultants responsible for his training in breast surgery at the Royal Marsden Hospital; two of these (Nos 7/14/15 and 7/14/16 of process) had been granted in 1993, when the petitioner applied for specialist accreditation, and two further letters (Nos. 7/14/27and 7/14/28 of process) had been written by those consultants in September 2000, after the petitioner's accreditation had been challenged. (I may say that these references were written in very enthusiastic terms, and indicated a clear opinion on the part of the two consultants that the petitioner had been an excellent student in the field of breast surgery). While the petitioner's training at the Royal Marsden Hospital had been in the particular field of breast surgery, that was the area in which he had subsequently practised. The tribunal ought, counsel submitted, to have had regard to the petitioner's career after he obtained specialist accreditation. [27] The petitioner's training record is summarised in the table at paragraph [18] above. It can be seen from that table that he had completed two years (1 October 1983 to 5 October 1985) as a Registrar at Kent & Canterbury and St Thomas's Hospitals; one of these years counted towards his training in terms of paragraph (b) of the regulations applicable to General Surgery in the JCHST Fourth Report (set out at paragraph [5] above). The petitioner had spent slightly over a year (17 September 1986 to 30 October 1987) as a Research Fellow at Senior Registrar level at Queen Alexandra Hospital, Portsmouth, and that year counted towards his training in terms of paragraph (4) of the general regulations applicable to the content of training programmes. Neither of these matters was in dispute between the parties. The periods spent as a locum Senior Registrar at each of the Queen Alexandra Hospital and the St Helier Hospital (August 1987-April 1988) would not have counted, because the positions in question were locum posts, not substantive; this was the point made by the tribunal in paragraph A (i) and (ii) of its decision. Ultimately I did not understand this to be disputed. In terms of regulation (1) of the general regulations applying to the content of training programmes and regulation (a) of the regulations applicable to General Surgery, the petitioner required another two years to complete the necessary four-year period of training. The only position that was capable of providing those two years of training was the appointment held by him at the Royal Marsden Hospital from May 1988 to May 1990. The critical question, accordingly, was whether that position was capable of satisfying the criteria in the JCHST Fourth Report. [28] That position was unusual in two respects. In the first place, the petitioner at least started as a locum, although the titular holder of the post, a Mr Montgomerie, had apparently held it for ten years and had been absent for a substantial part of that time. Exactly what happened to the post is not entirely clear from the documents that are available. In his written statement to the tribunal (Nos. 7/14/50 of process), the petitioner stated that initially his appointment was on a locum basis because Mr Montgomerie was at the relevant time on indefinite leave of absence. The petitioner further stated that substantive post was a recognised training post with its own (SAC) number, and that the locum appointment had been advertised and obtained in open competition. The fact that the post had its own number is clear from the Report of October 1988 into the Royal Marsden Hospital (No 6/48 of process, discussed below). In his written statement, the petitioner went on to state that, following the inspection of the Royal Marsden Hospital by the SAC in October 1988, and in the light of the fact that it was improbable that Mr Montgomerie would ever return, the two consultants for whom he worked, Mr McKinna and Mr Griffiths, informed him that with the approval of their colleagues they would be recommending to management that his locum post should be converted into a substantive one. The petitioner stated that he recalled having discussions with one of the hospital administrators about the financial implications of such a change, because his pay as a locum was higher than that of a substantive Senior Registrar. Thereafter, the petitioner stated, he proceeded on the assumption that his post was substantive. The petitioner further assumed that the substantive nature of the post had retrospective effect, since no change in the nature of his work and responsibilities had been involved. [29] The petitioner produced to the tribunal two letters from the consultants for whom he had worked during his time at the Royal Marsden Hospital, Mr J A McKinna and Mr J D Griffiths (Nos. 7/14/27 and 7/14/28 of process). Mr McKinna's letter, in which Mr Griffiths concurred, states:"As I recall it, the position of Senior Surgical Registrar at The Royal Marsden Hospital in 1988 - which Mr Phipps came to fill, initially as a locum, in May of that year - was under review for two reasons:
(i) the nature and details of a suitable rotation were under discussion with the Surgeons of St Thomas' Hospital. Indeed Phipps followed a St Thomas's S.R., Mr Graham LAYER (who had his own JPAC training number under the St Thomas's programme)
(ii) at that time, the post had approval for General Surgical training from an earlier visit by the SAC. However, we realised that the next visit of the SAC might revise that approval; it was essential that the post have a firm fixed rotation with another General Surgical Training programme.
Mr Phipps came to us in response to an advertisement from locum posts within the St Thomas' training programme and we believed that he could be joining that programme. Because of this and the uncertainties arising from (i) and (ii) above, Mr J D Griffiths and I, with the agreement of our colleagues in the Department of Surgery and in Medical Staffing, agreed that Mr Phipps should fill the substantive training post, until such time as final arrangements were made with a definitive training programme. Certainly I am sure that the Griffiths and I trained and supervised his work at that time with that intention. [Original underlining].
However, we failed to realise that he did not have his own JPAC number until the SAC visit - late in 1988 - when he was advised to obtain one from the JCHST, which he did".
That letter makes clear that the petitioner began work at the Royal Marsden Hospital as a locum Senior Registrar. It also indicates, however, that the two consultants responsible for his training agreed that he should fill the substantive post, and indeed understood that he had done so and trained him on that basis. That is entirely consistent with the petitioner's own statement, referred to in the preceding paragraph. Moreover, Mr McKinna's letter makes it clear that the substantive post was approved by the SAC for general surgical training. It should accordingly have had its own SAC number. The letter also indicates that the locum post that the petitioner filled was advertised; that is wholly consistent with the petitioner's own statement that the locum appointment had been advertised and obtained in open competition. The references in Mr McKinna's letter to JPAC numbers appear to be to the system of CR numbers that were given to individual Registrars and Senior Registrars who aspired to specialist training; the petitioner was given such a number in February 1989 (No 6/49 of process). It is interesting to note that Mr McKinna appears to have thought that it was the CR number that validated the petitioner's holding of a substantive post, rather than the SAC number; that perhaps illustrates the degree of confusion that existed about the numbering system, even among consultants.
[30] In the second place, the position held by the petitioner at this time was the subject of specific comment in the SAC Report on the Royal Marsden Hospital, conducted in October 1988 (No 6/48 of process). In that Report, the visitors were generally very complimentary about the services provided at the Royal Marsden Hospital, which they described as a specialist oncological hospital with excellent facilities to treat a variety of cancers, but predominantly breast carcinoma. They described it as offering a comprehensive training in surgical and other methods of management of a wide variety of tumours. They pointed out, however, that there were no acute admissions to the hospital and that surgical emergency experience was virtually nil. In relation to the position held by the petitioner, the visitors commented."The third SR has a Royal Marsden number, (approved by JPAC). The present incumbent of this numbered post is on secondment to St Mark's and has held his current appointment for ten years".
Senior registrars were interviewed, and appear to have indicated that they were not satisfied with the amount of direct surgical experience that they were receiving. Consequently the visitors made the following recommendations:
"1. That when the Marsden SR numbered post [the post occupied by the petitioner] becomes vacant it must be replaced by a shared appointment with another medical teaching centre in the vicinity, other than the Westminster and St George's.
2. The period of SR rotation to the Marsden should be for 6 months other... than in those instances where the trainee plans a future in surgical oncology, when a period of one year is recommended".
It should be noted that the recommendations relating to this post only became operative when the post next became vacant. It appears, therefore, that until that time the post was capable of counting for more than one year's training towards the requirements of the JCHST Fourth Report.
[31] The petitioner applied for retrospective accreditation in 1993. At this time the JCHST and SAC in General Surgery, the two bodies responsible for considering the application, were clearly aware that the petitioner was claiming two years of training at Senior Registrar level at the Royal Marsden Hospital. That appears from the correspondence that passed at the time (Nos 7/14/5-7/14/17 of process), and also from later correspondence between the JCHST and the Royal Australasian College of Surgeons in 1997 (No 7/14/35 of process). Consequently the qualifications in the Report on the Royal Marsden Hospital of October 1988 do not appear to have been treated as significant; the JCHST and SAC in General surgery were prepared to allow two years of training in that Hospital, which was of course well known as a specialist cancer hospital. [32] When the petitioner applied for retrospective accreditation the question of the locum or substantive nature of his post at the Royal Marsden Hospital was also raised in the correspondence. In a letter of 14 June 1993 (No 7/14/7 of process) addressed to the petitioner, the Secretary of the JCHST raised the matter, in addition to a number of other points, including obtaining references from the Consultants with whom the trainee had worked. He wrote:"The SAC would also wish to be assured that your post at the Royal Marsden Hospital was a recognised and substantive Senior Registrar post obtained after advertisement and in open competition".
A similar point is made in a letter of 22 June 1993 (No 7/14/8 of process). In a letter of 8 July 1993 (No 7/14/9 of process) the petitioner stated that the Senior Registrar position that he had held at the Royal Marsden Hospital had been a substantive post. That view seems to have been shared by the Consultants for whom he worked, as appears from the letters referred to in paragraph [29] above, at least to the extent that they believed that the original locum post had been converted into a substantive post. The requirement that the post should be obtained after advertisement and in open competition does not appear to be a condition of the JCHST Fourth Report. Nevertheless, the petitioner in his written statement to the tribunal (No 7/14/50 of process) indicated that he had obtained the locum post at the Royal Marsden Hospital after advertisement and in open competition, and Mr McKinna in his letter of 11 September 2000 (No 7/14/27 of process) to the respondents' Chief Executive stated that the locum post had been advertised.
[33] Against that background, the tribunal was confronted by two critical issues. The first was whether the post held by the petitioner at the Royal Marsden Hospital was a locum position, and not substantive. The second was whether, if that post was locum, the petitioner should not have been awarded retrospective accreditation. On the first issue, the tribunal decided that the post held by the petitioner at the Royal Marsden Hospital was locum, and not substantive. On the second issue, the tribunal held that, had the SAC in General Surgery been aware that all of the Senior Registrar posts listed in his JCHST application were locum and not substantive, the petitioner would not have been awarded retrospective accreditation. That clearly implies that, if the SAC in General Surgery had been aware specifically that the post at the Royal Marsden Hospital was locum in nature, they would not have granted accreditation. It should be noted that the Report on the Royal Marsden Hospital discussed in paragraph [30] above, although referred to in the tribunal's decision, was not founded on in reaching their conclusion. That is quite understandable, because the Report was prepared on behalf of the SAC in General Surgery and thus must have been known to them before they granted accreditation to the petitioner. It is quite clear that the SAC in General Surgery were aware that the petitioner was relying on his post at the Royal Marsden Hospital and regarded it as satisfying the requirements for specialist accreditation; that is obvious from the letters of Mr N J Grant, the Secretary of the JCHST dated 20 February 1995 and 6 May 1997 (Nos 7/14/18 and /35 of process). In any event, the substantive post had been recognised for the purposes of accreditation in General Surgery prior to that Report, and the recommendations in the Report were that the status of the position should only change when the post next became vacant, which arguably was after the petitioner left it; when the petitioner took up the post it was recognised as satisfying the requirements of the Scheme for Higher Surgical Training in General Surgery. The critical objection to counting the petitioner's post at the Royal Marsden Hospital, therefore, was its locum nature. The tribunal decided that that objection was fatal. [34] In my opinion that conclusion faces a major difficulty. On one view of the facts at least, the position at the Royal Marsden Hospital occupied by the petitioner was only a locum post in a technical sense. The titular holder of the substantive position was absent on secondment to another hospital, having held the appointment as Senior Registrar for ten years (No 6/48 of process). The substantive position had its own SAC number. That means that it was approved for training in general surgery. Most importantly, the training received by the petitioner in his position at the Royal Marsden Hospital appears to have been precisely the same training as he would have received had he held the substantive post. This is very clear from Mr McKinna's letter to the respondents of 11 September 2000 (No 7/14/27 of process). In that letter, in a passage that Mr McKinna saw fit to underline, he stated that he and Mr Griffiths trained and supervised the petitioner's work with the intention that the petitioner should fill the substantive training post. Mr Griffiths expressly concurred in the terms of that letter, as appears from his own letter of 12 September 2000 (No 7/14/28 of process). [35] Against the foregoing background, the question arises as to whether the rationale for the rule that locum posts should not satisfy the training requirements of the JCHST Fourth Report applies in the petitioner's case. Put in another way, the question is whether the fact that the post was locum in nature was of any practical significance. In my opinion this is crucial. The rationale for excluding locum posts from training programmes was, presumably, because the holders of such posts would not be treated in the same way as the holders of substantive training posts, at least so far as instruction in surgery was concerned. Consequently such training as the holder received was liable to be haphazard and incomplete. In addition, locum posts were presumably frequently, if not usually, occupied on a short-term basis. That in itself would inevitably lead to haphazard training, rather than the sort of systematic training in surgery that the holder of a substantive post could be expected to receive. That would clearly justify the exclusion of locum posts in the normal case. In the petitioner's case, however, there was a crucial difference; according to the two surgeons responsible for his training, Mr McKinna and Mr Griffiths, he received exactly the same training as a holder of the underlying substantive post would have received. If that is so, the rationale for excluding locum posts simply does not apply. Moreover, the petitioner held the post for two years, which would clearly be sufficient time for full training in it. Moreover, both Mr McKinna and Mr Griffiths were very complimentary about the petitioner's performance in the position that he held. In the circumstances, on the face of the written evidence at least, there appears to be no obvious justification for not counting the petitioner's time at the Royal Marsden Hospital towards his period of specialist training, notwithstanding that his position was technically a locum post. [36] If that is so, I am of opinion that the tribunal's conclusion and recommendation is unreasonable. The scheme for higher surgical training set out the in the JCHST Fourth Report does not have the force of law; it is rather a set of practical regulations intended to secure the adequate training of consultant surgeons. The scheme must be construed against that overriding purpose. Provided that the substance of the training specified in the scheme has been undertaken by an applicant for specialist accreditation, the overriding purpose will be satisfied. In that event it will normally be appropriate for the relevant body administering the scheme, whether an SAC or one of the Royal Colleges, to waive strict compliance with the requirements of the scheme. Otherwise substantial periods of intensive practical training may go to waste, at least in so far as specialist is accreditation is concerned. That does not appear to me to be a reasonable result. That is so even if the failure to comply with the strict requirements of the scheme is caused by inadvertence, or even carelessness, on the part of the candidate for specialist accreditation. As long as the substance of the training required by the scheme is undertaken it seems to me to be unfair to penalize a candidate for specialist accreditation on account of his failure to observe administrative requirements. In such cases, substance should prevail over form. [37] The tribunal's conclusion was that no account should be taken of the petitioner's time at the Royal Marsden Hospital because the post that he occupied there was a locum post, and their recommendation was that his specialist accreditation should therefore be withdrawn. No consideration was given to whether the substance of the training required by the scheme for higher surgical training had been satisfied. It appears from an informal record of the proceedings before the tribunal (No 7/14/52 of process, page 10) that some discussion took place as to whether the strict requirements of the JCHST Fourth Report could be waived, but this was very ill-focused. There is in any event no indication in the tribunal's written report (No 6/13 of process) that the tribunal took such considerations into account in reaching their decision. The respondents' Council, on 13 December 2002, considered the tribunal's conclusion and recommendations and reaffirmed their decision that the petitioner's accreditation should be withdrawn (No 6/22 of process). That decision was clearly based on the tribunal's reasoning. If the tribunal's conclusion and recommendation is unreasonable, it follows that the decision of the Council must also be unreasonable. If that is so, it must be reduced. [38] I am conscious, however, that the considerations discussed in the last four paragraphs may go somewhat beyond the matters that were debated before me during the first hearing of the petition. It is possible that other matters may be relevant to the question of whether strict compliance with the requirements of the JCHST Fourth Report was essential. For example, it is possible that locum posts were excluded from the system of training under the JCHST Fourth Report for reasons other than those discussed in paragraph [35]. If there is any dispute about such matters, it may be necessary to lead evidence. In any event, it is essential that both parties should have an opportunity to comment on the issues discussed in paragraphs [34] to [37]. For this reason I will have the case put out by order, for two purposes. First, the parties should be in a position to indicate whether they wish to make any further representations of fact or law on the issues covered in paragraphs [34] to [37]. Secondly, to the extent that either party considers that detailed legal submissions or the leading of evidence will be necessary, further procedure will be discussed. I should indicate, however, that if legal submissions, or factual submissions based on the existing documentary evidence, can be made succinctly, that should take place at the by order hearing. A continuation to a further hearing should only be necessary if it is necessary to make lengthy legal submissions, or to lodge additional documents or to lead oral evidence. [39] Before I leave the question of reasonableness, I should deal with three further matters. First, in dealing with reasonableness the critical question is not whether either the SAC in General Surgery or the respondents had a discretion to waive compliance with the strict requirements of the JCHST Fourth Report. The critical question is whether it was unreasonable to disregard the time spent by the petitioner at the Royal Marsden Hospital for the purpose of determining whether he had received an adequate training for specialist accreditation in general surgery. In that regard, the absence of a discretion may itself be unreasonable. [40] Secondly, the tribunal in their written decision refer to the correspondence that passed between the petitioner and Professor Browse in October and November 1988, in which Professor Browse told the petitioner that he should attempt to obtain a substantive Senior Registrar post as soon as possible (No 6/13 of process, paragraph C; the correspondence is found at 7/14/1 and 7/14/2). The tribunal also referred to a letter of 7 February 1989 in which the petitioner was told that he had been awarded a Career Registrar number; the petitioner seems to have erroneously assumed that he was then in a substantive Senior Registrar post. The tribunal refer to the fact that no attempt was made to verify that assumption or obtain confirmation in writing. Nor did the petitioner enrol with the SAC, as would normally have been required on his obtaining a substantive Senior Registrar post. That is no doubt all correct. Nevertheless, even the Consultants responsible for the petitioner's training, Mr McKinna and Mr Griffiths, were confused as to the system of numbering (see paragraphs [29] and [32] above), and I am bound to say that I did not find the explanations provided in the documentary productions about the system in force in the late 1980s particularly easy to follow. The central point, however, is that, provided that the training received by a candidate for specialist accreditation is the full training that would have been received by a properly enrolled candidate, the fact that the administrative rules were not followed to the letter should not matter. Provided that the training itself in accordance with the Scheme for Higher Surgical Training, it should be possible to overlook a failure to comply with the rules, and if that is not possible the application of the Scheme is itself unreasonable. In the present case the petitioner's failure to comply with the rules is perhaps understandable. He had discussions with the authorities at the Royal Marsden Hospital which led him to understand that his position had been converted into a substantive post, and indeed had discussions about the implications for his salary. Moreover, the Consultants responsible for his training thought that he was occupying the substantive post, and trained him accordingly. He was clearly interested in the treatment of cancer, and breast cancer in particular. The Royal Marsden Hospital was one of the leading hospitals in the United Kingdom, if not the world, in that area. It is obvious that he would be anxious to complete his training there. In those circumstances it is perhaps hardly surprising that he was somewhat careless about the administrative requirements of the Scheme for Higher Surgical Training. In any event, as I have already stated, I do not think that administrative requirements should stand in the way of accreditation for someone who has plainly completed the training that is required by the Scheme. [41] Thirdly, a major point made by counsel for the respondents was that the most important objective of the Scheme for Higher Surgical Training is the safety of the public. That is clearly correct. Nevertheless, the safety of the public is satisfied if the substance of the Scheme has been undertaken by a candidate for accreditation, regardless of whether the niceties of administrative form have been followed. Counsel developed this point under reference to the Report into the Royal Marsden Hospital in 1988 (No 6/48 of process). The recommendations in that Report were that, when the existing Senior Registrar numbered post (that occupied by the petitioner) became vacant, it should be replaced by a shared appointment with another medical teaching centre, and that the period of Senior Registrar rotation in the Royal Marsden Hospital should be six months other than for trainees who planned a future in surgical oncology, when a period of one year was recommended. In my opinion that recommendation is not relevant to the petitioner's position for four reasons. First, prior to the 1988 Report, the post occupied by the petitioner, at least if it were occupied as a substantive position, was recognised for training purposes. That is a strong indication that the consideration of public safety is simply irrelevant in this case. Secondly, when the petitioner was granted retrospective accreditation, it is clear that the SAC in General Surgery and the JCHST were aware that his time at the Royal Marsden Hospital was to be included as part of his training; that appears from the letters from Mr N J Grant, the Secretary of the JCHST, dated 20 February 1995 and 6 May 1997 (nos 7/14/18 7/14/35 of process). Those bodies must have been aware of the 1988 Report, which was prepared on behalf of the SAC in General Surgery. It is accordingly clear that the nature of the post was not regarded in 1993 as an objection to the petitioner's specialist accreditation. Thirdly, although the tribunal referred to the 1988 Report in paragraph B of its written decision, it does not appear from the conclusion of that document that it played any part in their decision. Instead, the conclusion focuses entirely on the locum nature of the posts occupied by the petitioner. Fourthly, the recommendations contained in the 1988 Report are that changes should occur when the existing numbered post became vacant. On one view, at least, that would occur when the petitioner ceased to occupy it. Although Mr Montgomerie was the titular holder of the post, it is quite clear that for all practical purposes it was occupied by the petitioner. In any event, the petitioner had become the locum in that post at the time when it was recognised for training purposes, and it would not normally be appropriate to take away the status of the post for training purposes until he left. It is possible, of course, that the reference in the recommendations in the 1988 Report to the point when the numbered post became vacant was to Mr Montgomerie's leaving it, since he was the titular holder of the substantive post. For this reason it is difficult to reach a concluded view as to whether the recommendations of the 1988 Report became operative without rather more information as to the exact position of Mr Montgomerie at that time. Consequently I regard this reason as less important than the preceding three reasons. Those reasons are, however, sufficient in my view to make it irrelevant that the post of Senior Registrar was not, if the 1988 report was implemented, to be effective for more than six months or one year in the case of those intending a future in surgical oncology.Error of fact
[42] Counsel for the petitioner contended that in their written decision the tribunal had made reference to the pursuer's being awarded a career registrar number, through a letter dated 7 February 1989. The significance of such numbers was explained in a letter from Mrs Tara Willmott, the Secretary to the JCHST, dated 14 July 2000 (No 6/27 of process). That letter, however, had been addressed to the Medical Director of Bradford Royal Infirmary. It could not be said that that letter had been forwarded to the respondents or to the tribunal, and consequently it could not be said that the tribunal was aware of the letter explaining the significance of the number in question. Counsel referred to E v Home Secretary, [2004] EWCA Civ 49, in which it was recognised by the Court of Appeal in England that error of fact might be a ground of challenge to an administrative decision, if it gave rise to unfairness: see paragraphs 44-66. Counsel submitted that there was a duty on the respondents to put all relevant evidence before the tribunal, and that accordingly it was possible to say that the failure to put this particular piece of information before the tribunal led to its decision being unfair. [43] There is no Scottish case dealing with error of fact as an independent ground of challenge to an administrative decision, distinct from unreasonableness or failure to take account of a relevant consideration or taking account of an irrelevant consideration. E v Home Secretary raises a number of interesting issues, but I do not think that it is necessary to consider them in the present case. That is because any error of fact that may have arisen in relation to the petitioner's career registrar number was simply not relevant to the decision that the tribunal reached. As explained above in paragraph [4], the allocation of a career registrar number simply meant that the individual concerned was a person who was in a position to embark on specialist surgical training. It did not mean that that person held a substantive post. The essence of the tribunal's decision is that, during his time at the Royal Marsden Hospital, the petitioner did not hold a substantive post. It was the existence of an SAC SR number that indicated a substantive post. That is the number that the petitioner did not have.Error of law
[44] The last argument for the petitioner was that the respondents erred in law in reaching their decision to withdraw the petitioner's specialist accreditation. The Council of the respondents had originally decided on 3 October 2000 that "there was a weight of evidence that Mr Phipps CV had misled the SAC", and that the Council were "minded to withdraw his accreditation" (No 6/5 of process). That decision was intimated to the petitioner by letter dated for October 2000 (No 6/6 of process). After the tribunal had completed its deliberations, the question of the petitioner's specialist accreditation was again considered by the respondents' Council, on 13 December 2002. Their decision was intimated to the General Medical Council by letter dated 23 December 2002 (No 6/22 of process), in the following terms:"On 13 December 2002 the matter was considered again by the Council of the College and, in view of fact that no appeal had been received, Council reaffirmed their decision that Mr Phipps' accreditation should be withdrawn. I should thus be grateful if the GMC would now take appropriate action".
Counsel submitted that these documents meant that the decision made in October 2000, on the basis of dishonesty, was taken to be "affirmed" by the decision of the tribunal. The decision of the tribunal, however, proceeded on the basis of the inadequacy of the petitioner's training. Because of the difference in the bases for the two decisions there was a lack of clear reasons for the decision-making process.
[45] In my opinion there was no error of law. In the first place, I do not think that any necessary inference of dishonesty is to be drawn from the minute of the respondents' Council meeting of 3 October 2000. The word "misled" is quite consistent with a misrepresentation that is careless or even wholly innocent. In other words, all that the expression means is that, in view of the Council members, the SAC had not properly understood the petitioner's training record. The tribunal's decision was that the petitioner's training record did not satisfy the requirements of the Scheme for Higher Surgical Training, and that if the SAC had understood the true situation they would not have granted specialist accreditation. I do not think that there is any difference between these positions that is material for present purposes. In the second place, I think that counsel's argument read too much into the word "reaffirmed" in the letter of 23 December 2002. All that that signifies in my opinion is that the respondents' Council reached the same result as they had reached provisionally on 3 October 2000, but did so in the light of the tribunal decision. It does not mean that the decision was identical in every part of its reasoning, and indeed that would be a most unlikely result because the decision reached in December 2002 was based on the tribunal's recommendations.Conclusion
[46] For the reasons discussed in paragraphs [34]-[38] above I will have the case put out by order to enable a discussion of the specific matters set out in paragraph [38].
