Scottish Court of Session Decisions

[7] The main point for discussion at the by order hearing was the significance of the fact that the post occupied by the petitioner at the Royal Marsden Hospital was locum and not substantive in nature. On this subject I was referred to two affidavits by Mr J. A. R. Smith, respectively dated 11 March and 19 May 2005. Mr Smith was clearly qualified to give evidence on this matter, as he had been a member of the SAC in General Surgery from 1984 until 1991 and had been involved in the regulation of higher surgical training until 2003. In his affidavit of 19 May Mr Smith stated that he was able to set out the reasons for not treating locum senior registrar posts as recognized training posts. These can I think be summarized as follows:

1. The number of trainees was limited by the number of hospital programmes

2. There was neither an obligation nor an expectation that a locum would be

3. Locum appointments were less important posts and attracted fewer and less

4. A substantive post was part of an approved training programme. This would

5. All substantive posts were subject to regular in-training assessments. Any

6. At the end of the training programme the record of a substantive trainee was

In referring me to Mr Smith's affidavit, counsel for the respondents placed particular emphasis on the level of competition for substantive posts; in this way, he submitted, only the best candidates would be appointed, which guaranteed the calibre of those appointed to consultant posts.

[8] The first of Mr Smith's reasons for not treating locum posts in the same way as substantive posts is quite intelligible. It is, however, an entirely general reason, and has no obvious relevance to the position of an individual candidate for specialist accreditation who found himself in the petitioner's situation. It is also concerned with financial constraints, which clearly limited the number of training programmes and the number of consultant posts that were available. Those financial constraints, however, do not seem to me to be relevant to the petitioner's accreditation.

[9] Mr Smith's second reason is mentioned in paragraph [35] of my opinion of 30 March 2005. In my opinion it is a matter that is clearly of great importance. In the petitioner's case, however, the two surgeons responsible for his training at the Royal Marsden Hospital, Mr McKinna and Mr Griffiths, both stated very clearly that he received exactly the same training as a holder of the underlying substantive post would have received (Nos 7/14/27 and 7/14/28 of process). In his letter to the respondents of 11 September 2000 (No 7/14/27 of process), Mr McKinna, in an underlined passage, 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. In these circumstances, I am of opinion that this reason can have no bearing on the petitioner's case; according to the best available material, he was trained in exactly the same way as the holder of the substantive post would have been trained.

[10] Mr Smith's third reason relates to the competition for training posts. It did not appear to have been disputed that the locum post occupied by the petitioner at the Royal Marsden Hospital was advertised, but the respondents contended that the process of advertisement and selection in such cases was much less rigorous than with substantive posts. I can see that this is a factor that could be relevant in an appropriate case. I think it significant, however, that Mr McKinna and Mr Griffiths were very complimentary about the petitioner's abilities as a surgeon during the period of his training; this appears from their letters, both dated 6 September 1993, written to the Secretary of the JCHST in support of the petitioner's application for accreditation (Nos 7/14/15 and 7/14/16 of process). Mr McKinna wrote that he could support the petitioner's application "without any hesitation", and described him as "a good trainee who got on well with patients and operated well". He is also described as "instrumental in helping to enlarge my own skill and experience in breast reconstruction". Mr Griffiths describes him as "a very capable surgeon and able to undertake all duties with skill and caring". He concludes "I recommend him most highly for accreditation". In these circumstances I cannot see that the lack of rigour in the petitioner's appointment to the Royal Marsden position is of any real significance. The most important issue is the petitioner's skill as a surgeon, not his ability to impress appointment committees. Skill as a surgeon is obviously much better evidenced by the testimonials of the surgeons who were actually responsible for supervising the petitioner's training. In addition, I think that the matters discussed below at paragraphs [14] - [16] are relevant to this ground of objection to the petitioner's accreditation.

[11] The fourth reason advanced by Mr Smith relates to the importance of structured training programmes. Such programmes are clearly important. Nevertheless it seems clear from the documents discussed at paragraphs [14] - [16] below that not all candidates for specialist accreditation had passed through such programmes, and in such cases the status of their training required to be individually assessed. That seems to me to be a matter of common sense. The position occupied by the petitioner at the Royal Marsden Hospital had been considered, at least in its substantive form, by visitors from the JCHST, and in May 1988 its status was that the substantive post was recognized for training purposes without qualification. Even on the basis of the recommendations in the October 1983 Report, it was recognized without limitation in respect of candidates who intended to specialize in surgical oncology. In these circumstances it cannot in my opinion be said that the petitioner's lack of a structured training programme is relevant; he went through what would at the time when he started at the Royal Marsden have constituted a recognized training programme. Even if all outstanding recommendations had been taken into account at that time, his full period at the Royal Marsden would still have counted towards his specialist training.

[12] Mr Smith's fifth reason relates to the assessment of substantive posts. It is clear, however, that the substantive post underlying the position that the petitioner held as a locum was regularly assessed; that is clear from the reports of the JCHST visitors that were made available (Nos 6/48, 7/18 and 7/23 of process). Moreover, it is clear from the letters from Mr McKinna and Mr Griffiths that the petitioner had been trained as if he were the holder of the substantive posts. In these circumstances I conclude that this reason has no bearing on the petitioner's case.

[13] Mr Smith's sixth reason relates to the fact that the record of a substantive trainee would be assessed, at the end of his training programme, both locally and by the JCHST. The petitioner applied for retrospective accreditation to the JCHST, who considered the training that he had received, including the references provided by Mr McKinna and Mr Griffiths. It seems clear, therefore, that the training programme that was in fact followed by the petitioner was reviewed and approved by the JCHST when specialist accreditation was granted. For this reason I do not think that this reason is relevant to the petitioner.

[14] Certain further documents were lodged on behalf of the petitioner. The most significant of these were minutes of meetings of the SAC in General Surgery dated 3 October 1989 and 17 April 1990 (Nos 6/56 and 6/53 of process), and an extract from the evidence of Sir Norman Browse given to the General Medical Council in relation to the petitioner (No 6/55 of process); Sir Norman had been chairman of the SAC in General Surgery from 1985 until 1989. In the minutes of the meeting of the SAC in General Surgery held on 4 October 1989, it was noted that a Mr Kirk had undertaken "to interview and advise the people who had applied to the SAC for accreditation without having held substantive Senior Registrar posts". That of itself suggests that the SAC exercised a discretion in relation to individuals who had not been through recognized training programmes, and who indeed had not even occupied a position as senior registrar. In the minutes of the meeting of the SAC in General Surgery held on 17 April 1990, this matter was taken further. Item 19 of those minutes is in the following terms:

This makes it quite clear that the SAC in General Surgery exercised a discretion in relation to individuals who wished to applied for specialist accreditation but had not completed the formal requirements of a training programme. In the same minutes, it was recorded that the Committee had agreed that a specialist post forming part of the Lothian Breast Screening Project would count towards two years training at senior registrar level. That again indicates that a discretion was exercised in relation to individual posts, and that two years spent in the field of breast surgery was regarded as acceptable training in at least one other instance.

[15] The evidence of Sir Norman Browse before the GMC also makes it clear that the SAC in General Surgery exercised a discretion as to the accreditation of individuals who had not completed the formal requirements of a training programme. He commented on the minutes of the meetings of the SAC in General Surgery held on 3 October 1989 and 17 April 1990, and stated that a significant number of individuals would seek accreditation without having held substantive approved senior registrar posts. Some of these would have held locum posts rather than substantive posts. He stated that the purpose of Mr Kirk's interviewing these individuals was to see whether anything could be done to help people in what he described as "that difficult position". He then commented

He agreed with the suggestion that, although there were rules, the Committee were able to bend them according to the requirements and according to the personal history of the individual, provided that the individual satisfied the equivalent of the rules. Sir Norman's final comment on this matter was as follows:

I do not find this evidence in any way surprising; it largely repeats the considerations that lay behind the discussion in paragraphs [36] and [37] of my opinion of 30 March. I am surprised that Mr Smith in his affidavits makes no mention of any practice of considering individual cases. On this matter, however, I have no hesitation in preferring the views stated in Sir Norman Browse's evidence; those views are clearly based on the minutes of SAC meetings, whereas Mr Smith's views appear to be based rather on his own personal recollection. It might also be said that he appears to lack the objectivity of Sir Norman Browse.

[16] In these circumstances I conclude that the practice of the SAC in General Surgery at the time when the petitioner completed his training at the Royal Marsden Hospital was to give specific consideration to the case of any applicant who had not completed the requirements of a formal training programme and to assess, on an individual basis, whether that person should receive specialist accreditation in view of the training that he had actually received. For this purpose, periods spent in locum posts would be taken into consideration. It seems to me to be clear that the tribunal set up by the respondents had no regard to any such practice in reaching their decision of 20 June 2001. Likewise, the respondents themselves, in recommending that the petitioner's specialist accreditation should be withdrawn, had no regard to any such practice. These matters in themselves are sufficient in my opinion to vitiate the respondents' decision; it is, quite simply, unreasonable for a body such as the respondents not to give proper consideration to the circumstances of individual cases when they are considering a matter such as the withdrawal of specialist accreditation.

[17] In addition, I am of opinion that no good reason has been suggested by the respondents as to why the petitioner's period of training at the Royal Marsden Hospital under Mr McKinna and Mr Griffiths should not the taken into consideration for the purpose of granting specialist accreditation. In my opinion of 30 March I indicated that matters other than the nature of the training received might be relevant to whether time spent in a locum post should count towards specialist accreditation. For the reasons discussed above at paragraphs [8] - [13], I am satisfied that, while certain other matters are relevant to this question, none of them has any bearing on the petitioner's case. I accordingly conclude that the tribunal set up by the respondents, and in due course the respondents themselves, should have taken the petitioner's full period of training at the Royal Marsden Hospital into account in considering whether he had satisfied the requirements of specialist accreditation. Their failure to do so was unreasonable, in the sense that no reasonable body in their position, properly directed on the law, could have reached the same conclusion.

[18] In these circumstances I will uphold the third plea in law for the petitioner to the effect that the decision of the respondents of 13 December 2002 was unreasonable. At the same time I will repel the respondents' first, second and fourth pleased in law so far as they relate to the reasonableness of the respondents' decision of 30 December 2002. I will accordingly pronounce decree of declarator that in removing the petitioner's accreditation the respondents acted unreasonably, and decree of reduction of the respondents' decision of 13 December 2002 to withdraw the accreditation of the petitioner as a specialist in General surgery, together with any previous decision to the same effect in so far as it may still have operative effect. The petitioner has only been successful on the basis that the respondents' decision was unreasonable; he has not been successful in relation to other grounds of challenge. In these circumstances I will repel the petitioner's first, second, fourth and fifth pleas in law, and I will uphold the respondents' first plea in law to the extent that it relates to matters covered by those pleas of the petitioner. The petitioner also claims damages, but I was asked to reserve that matter, if it remained relevant, for a second hearing. I will accordingly do so.