British Medical Association, R (on the application of) v General Medical Council

Factual and Procedural Background

This opinion concerns an urgent application for permission to apply for judicial review by the Appellant of a decision by the Defendant made on 22 May 2008. The decision abolished a long-standing concession exempting doctors aged 65 and over from paying an annual retention fee to remain on the medical register. The Defendant had previously stayed the implementation of this decision pending the outcome of these proceedings. The Defendant acted on legal advice concluding that the concession was unlawful under the Employment Equality (Age) Regulations 2006, which implement the Equal Treatment Directive 2000/78/EC prohibiting age discrimination in the workplace.

The Defendant did not consult registered medical practitioners, the Appellant, or other professional medical bodies before abolishing the concession, though it did provide advance notice of its intention. The Appellant contended that all registered medical practitioners held a legitimate expectation of consultation, the absence of which rendered the decision conspicuously unfair and an abuse of power, or alternatively, that the decision not to consult was perverse.

The legislative framework includes the Medical Act 1983 provisions governing medical registration and fees, which empower the Defendant to set fees for entry, restoration, and retention on the medical register. The age-related exemption from the annual retention fee had been in place since 1970, exempting doctors aged 65 and over. The Employment Equality (Age) Regulations 2006 define unlawful age discrimination and apply to the Defendant's registration activities, rendering the age exemption likely unlawful unless justified as a proportionate means of achieving a legitimate aim.

The Defendant received expert legal advice confirming the exemption was unlawful age discrimination. After consultation with officials and the Department of Health, which declined to legislate to legitimize the exemption, the Defendant's Council decided to abolish the exemption effective 31 October 2008, with no new exemptions granted after 30 June 2008.

The Appellant challenged the decision on grounds including the failure to consult registered medical practitioners, asserting a legitimate expectation of consultation based on the long-standing nature of the exemption and its impact on those affected. The Defendant argued there was no legal duty to consult and that the decision was rational and lawful.

The court heard submissions on the legal principles of legitimate expectation, consultation, and the lawfulness of the Defendant's actions, including detailed analysis of relevant case law and statutory provisions.

Legal Issues Presented

1. Whether the Defendant's decision to abolish the age-based exemption from the annual retention fee constituted unlawful age discrimination under the Employment Equality (Age) Regulations 2006.
2. Whether the Appellant and registered medical practitioners had a legitimate expectation of consultation before the Defendant abolished the exemption.
3. Whether the failure to consult constituted conspicuous unfairness or an abuse of power justifying judicial intervention.
4. Whether the court should grant relief or refuse it on grounds including delay and the effect of maintaining an unlawful practice during consultation.

Arguments of the Parties

Appellant's Arguments

• The long-standing existence of the age exemption (38 years) created a legitimate expectation among all registered medical practitioners that consultation would occur before its abolition.
• The failure to consult was conspicuously unfair and amounted to an abuse of power.
• Consultation could have identified alternative schemes, such as exemptions based on years of service rather than age, potentially mitigating the impact on affected practitioners.
• The Defendant's failure to consult ignored the interests of the entire medical profession, not just the Appellant.

Defendant's Arguments

• There was no legal duty to consult before abolishing the exemption as the Medical Act does not require consultation for fee regulations.
• The Defendant acted rationally and responsibly in promptly addressing unlawful discrimination once identified.
• Consultation would have delayed compliance with the law and was therefore neither mandatory nor appropriate.
• The Defendant had previously abolished other exemptions and increased fees without consultation, establishing no precedent for consultation in this context.
• The impact of the abolition was not profound, affecting a minority and mostly retired doctors, with financial implications mitigated by tax relief.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed examination of the statutory framework, the Employment Equality (Age) Regulations 2006, and the relevant case law on legitimate expectation. It accepted the expert opinion that the age exemption was unlawful direct age discrimination unless justified as a proportionate means of achieving a legitimate aim, which the Defendant could not identify. The Department of Health's refusal to legislate further supported this conclusion.

Regarding legitimate expectation, the court distinguished between the "paradigm case" of procedural expectation founded on an unequivocal promise or consistent practice of consultation, and a "secondary case" of procedural expectation based solely on the claimant having enjoyed a benefit in the past. The latter requires striking unfairness to impose a duty to consult.

The court found no evidence of any promise, practice, or representation by the Defendant that consultation would occur before the abolition of the exemption. The long duration of the exemption alone did not establish a legitimate expectation of consultation. The Defendant's past conduct did not encourage the belief that consultation was required, especially given the nature of the decision as rectifying unlawful discrimination.

The court further noted practical considerations, including the large number of registered practitioners and the urgency to comply with the law, as justifications for the absence of consultation. The Defendant had informed relevant bodies and affected practitioners of the issue and invited responses, which the court considered adequate in the circumstances.

The court rejected the Appellant's submissions that the failure to consult was conspicuously unfair or an abuse of power. It also dismissed the request for further disclosure of internal documents, finding the material before the court sufficient. Although the claim was not brought promptly, the court granted an extension of time due to the nature of the issues.

Finally, the court considered but did not fully explore the argument that relief should be refused on the basis that consultation would require maintaining an unlawful practice. Given the court's conclusions, this issue was not determinative.

Holding and Implications

The court granted permission to apply for judicial review but ultimately DISMISSED the application for relief.

The decision confirms that the abolition of an unlawful age-based exemption by a public regulatory body does not necessarily give rise to a legitimate expectation of consultation absent an express promise or established practice. The court emphasized that the duty to consult in the context of legitimate expectation arises only in exceptional circumstances marked by conspicuous unfairness, which were not present here.

The direct effect of the ruling is to uphold the Defendant's decision to abolish the age exemption without prior consultation, requiring affected practitioners to pay the annual retention fee. No new legal precedent was established beyond the application of established principles on legitimate expectation and age discrimination.

The court also ordered that the Appellant pay the Defendant's costs, to be assessed if not agreed.