Case No: C1/2012/2249
Neutral Citation Number: [2013] EWCA Civ 327
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT, QUEENS BENCH DIVISION
MR JUSTICE HICKINBOTTOM
CO/1518/2012
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/03/2013
Before :

THE MASTER OF THE ROLLS
LORD JUSTICE LLOYD
and
LORD JUSTICE LLOYD JONES
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Between :

	THE QUEEN ON THE APPLICATION OF PATEL	Appellant	
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	GENERAL MEDICAL COUNCIL	Respondent	
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(Transcript of the Handed Down Judgment of
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Richard Drabble QC and Kate Beattie (instructed by Neumans LLP) for the Appellant.
Eleanor Grey QC (instructed by The General Medical Council) for Respondent

Hearing dates : 26 & 27 February, 2013
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Judgment
LORD JUSTICE LLOYD JONES : 
1.	This is an appeal by Dr. Sailesh Patel against the order of Hickinbottom J. dismissing his application for judicial review of the decision of the General Medical Council (“GMC”) to refuse to accept his Primary Medical Qualification (“PMQ”) obtained from the International University of Health Sciences, St. Kitts and Nevis (“IUHS”) as an acceptable overseas qualification pursuant to section 21C Medical Act 1983.  The effect of this refusal has been that the appellant has not been permitted to progress his application for registration with the General Medical Council.  As a consequence he has been unable to take a competency and linguists examinations set by the Professional and Linguists Assessment Board (“PLAB”) or undertake a placement in a National Health Service hospital for Foundation Year 1.
The Regulatory Framework.
2.	Under the Medical Act 1983 the GMC is charged with the responsibility for registering and regulating doctors within the United Kingdom pursuant to its primary purpose “to protect, promote and maintain the health and safety of the public” (section 1(1A).)  Section 2 requires the Registrar of the GMC to keep a register of medical practitioners.  All medical practitioners are required to be registered with full or provisional registration.  Provisional registration enables a doctor to practise under supervision and only as part of an “acceptable programme” designed to show that he possesses the knowledge, skills and experience necessary for practising as a fully registered medical practitioner.
3.	Sections 21B and 21C, introduced by the Medical Act 1983 (Amendment) and Miscellaneous Amendments Order 2006 (SI 2006 No. 1914) make provision for the registration of doctors who have overseas qualifications.  Section 21B(1) concerns registration as a fully registered medical practitioner.  It provides:
“(1) Where a person satisfies the Registrar:
(a)	that he holds, or has passed all the qualifying examinations necessary for obtaining, an acceptable overseas qualification;
(b)	that he possesses the knowledge, skills and experience necessary for practising as a fully registered medical practitioner in the United Kingdom;
(c)	that his fitness to practise is not impaired;
(d)	unless he is an exempt person, that he has the necessary knowledge of English, and
(e)	that, where:
(i)	the person is an exempt person
(ii)	his acceptable overseas qualification was, or would have been, granted otherwise than in a relevant European State, and 
(iii)	that qualification, or the person’s having passed those examinations, has not previously been accepted by a relevant European State as qualifying the person to practise as a medical practitioner in that State, that qualification is, or would have been, evidence of medical training which satisfies the [basic medical training] requirements of [the relevant European Directive],
that person shall, if the General Council think fit so to direct, be registered under this section as a fully registered medical practitioner.”
4.	The definition of “acceptable overseas qualification” was originally provided by section 22(4):
“In this Act an “acceptable overseas qualification” means any qualification granted outside the United Kingdom and for the time being accepted by the General Council for the purposes of this section as furnishing a sufficient guarantee of the possession of the knowledge and skills requisite for the practice of medicine under the supervision of a person who is registered as a fully registered medical practitioner.”
	  However, the 2006 Order substituted a new definition in section 21B(2);
“In this Act, an “acceptable overseas qualification” means any qualification granted outside the United Kingdom, where that qualification is for the time being accepted by the General Council as qualifying a person to practise as a medical practitioner in the United Kingdom.”
5.	Section 21C concerns provisional registration of doctors with an overseas qualification.  Section 21C(2) provides:
“A person who satisfies the Registrar -
(a)	of the matters specified in paragraphs (a), (c), (d) and (e) of subsection (1) of section 23B above so far as they are matters of which the Registrar would in the person’s case have to be satisfied in order for the person to be eligible to benefit from a direction under that subsection; and
(b)	that he possesses the knowledge and skill requisite for embarking upon an acceptable programme for provisionally registered doctors,
may apply to the General Council to be provisionally registered under this section and, if the Council think fit so to direct, that person shall be so registered.”
6.	Where an application for registration is refused by the Registrar, there is a right of appeal to the Registration Appeals Panel (“RAP”), a statutory committee of the GMC.
7.	There are no universally accepted criteria for accreditation of medical schools or PMQs.  Prior to 1995, the GMC maintained its own list of approved qualifications.  However, in October 1995 the Registration Committee concluded that it could not continue to maintain the list because of the practical difficulties of assessing or verifying PMQs available around the world.  In its place the Committee used a list of qualifications published in the World Health Organisation (“WHO”) Directory, which it accepted as “acceptable overseas qualifications” without any further assessment.
8.	In 2005 investigative journalism by the BBC identified some serious abuses although, I emphasise, none involved IUHS.  The Registration Committee found that a number of UK based private medical schools claimed affiliations to universities listed in the WHO Directory when in fact they had no such links at all.  Some qualifications were awarded by universities which had no physical address identified in the WHO Directory.  Furthermore, the Registration Committee was concerned that some qualifications granted by medical schools which appeared in the WHO Directory were awarded following a course of study which was undertaken wholly or substantially in another jurisdiction, or with substantially less than the 5,500 hours or 6 years usual for PMQs obtained in the United Kingdom or which was pursued by way of correspondence courses or distance learning undertaken without face to face teaching.
9.	At its meeting of 13th June 2006 the Registration Committee concluded that there was no suitable alternative to continuing to use the WHO Directory.  However, it decided to revise the criteria for an “acceptable overseas qualification”.  The new criteria are set out in the minutes:
“15. The Committee therefore agreed a revised definition of an acceptable primary medical qualification, as one which:
(a)	Has been awarded by an institution which is listed in the WHO Directory or otherwise accepted by the GMC.
(b)	Has been awarded by an institution which has a physical address included in the WHO Directory.
(c)	Has been awarded after a course of study comprising at least 5,500 hours (or four years full time equivalent study).
(d)	Has not involved a course of study undertaken wholly or substantially outside the country that awarded the PMQ.
(e)	Has not involved following a course of study undertaken wholly or substantially by correspondence.
16. The Committee noted that an application which does not comply with the requirement of paragraph 15(a) would be refused on the grounds that it is not an acceptable qualification.  An application which complied with paragraph 15(a), but lacked compliance with one or more of the requirements at paragraphs 15(b)–(e), would be subject to further review.  The Office was asked to clarify the position in relation to this process.”

10.	In the years that followed the GMC encountered two difficulties with the 2006 criteria.  First, the requirement that the relevant course must not be “wholly or substantially” undertaken outside the country of the award or by correspondence lacked certainty.  Secondly, while the Registrar took the view that each of the criteria set out in sub-paragraphs 15(a)–(e) was a precondition of acceptance of a qualification, in three appeals the RAP concluded that only the requirement in 15(a) was mandatory and that the reference in paragraph 16 to “further review” gave it a discretion to look at the merits of the application on a case by case basis.  As a result it allowed three appeals and permitted doctors to be registered despite the fact that they had not satisfied one or more of the criteria set out in paragraphs 15(b)–(e).  However, the GMC has maintained throughout and still maintains there was no such discretion under the 2006 criteria.
11.	Accordingly on the 13 July 2010 the GMC again revised its criteria for “acceptable overseas qualifications”.  On this occasion the reference directory was changed from the WHO Directory to the Avicenna Directory.  In addition, the requirements that the qualification had not involved a course of study undertaken “wholly or substantially” outside the country that awarded it or had not followed a course of study undertaken “wholly or substantially” by correspondence were replaced by new criteria (e) and (f):
“(e) It must not have involved a programme of study where more than 50% of that study (compared to the standard duration of the qualification) has been undertaken outside the country that awarded the qualification.
(f)  It must not have involved following a programme of study where more than 25% of that study (compared to the standard duration of the qualification calculated using total hours of study) has been undertaken by distance learning.  Distance learning will include learning by correspondence, using the internet or on-line learning methods, self-directed learning and any training or learning which is undertaken other than on a face to face basis.”
Furthermore, a new criterion (g) provided:
“(g) Where the qualification held by an applicant fails to satisfy any one or more of the above criteria that application must be refused (on the grounds that the applicant does not hold an acceptable overseas qualification).”
12.	The 2010 criteria have been applied since 2010.  Under these criteria, where a particular qualification does not satisfy criterion (e) or (f) then, pursuant to criterion (g), registration has been automatically refused on the ground that the applicant does not hold an acceptable overseas qualification.

The Appellant
13.	The appellant is now 54 years of age.  He holds a British passport and has resided in the United Kingdom since 1969.  He is a qualified Pharmacist.  After obtaining his BSc in Pharmacy from the City of Leicester Polytechnic, he worked as a Pharmacist Manager at Boots the Chemist from 1980 to 1983.  He then started his own independent pharmacy business of which he is still a director and managed and provided pharmacy services at three pharmacies in Surrey.
14.	In 2004 the appellant, who was then 46 years of age, decided that he wanted to fulfil a long-standing ambition to qualify as a doctor with a view to practising medicine in the United Kingdom.  He wanted to complete his pre-clinical studies on a part-time basis because he was still carrying on his business as a pharmacist.  However, he understood that he would have to devote himself full time to those periods when he was undertaking clinical rotations.  His plan was to study on a suitable distance-learning course, but to carry out the clinical rotations element in the United Kingdom.  He identified an MBBS course offered by the IUHS, an institution listed in the WHO Directory (and now listed in the Avicenna Directory).  The course involved 160 weeks of study divided into 10 equal blocks.  At the conclusion of each block each candidate had to pass an examination before proceeding to the next block.  At the end of the entire period of study, each candidate was required to pass both an IUHS internal exit examination and the US Medical Licensing Examination Step 1, before proceeding to the clinical stage.  The clinical training comprised 80 weeks with core rotations undertaken for 48 weeks and elective rotations for 32 weeks.  At the end of that clinical training IUHS required students to pass the US Medical Licensing Examination Step 2 (clinical knowledge) before being awarded the degree.
15.	Undertaking such a course was, inevitably, a major commitment for the appellant.  As a result, he decided to contact the GMC for information about the suitability for his purpose of his proposed course.  There followed, in November 2004 i.e. before the introduction of the 2006 criteria, email correspondence between the appellant and the Registration and Education Directorate of the GMC which has an important bearing on this case and which therefore requires to be set out in full. (The references in the correspondence to the London College of Medicine are to a private medical college in the United Kingdom which was affiliated to the IUHS.  The appellant’s initial plan was to obtain an IUHS degree by applying to the London College of Medicine.  However, the correspondence moves on to address the suitability of the medical course offered by the IUHS in St. Kitts.  The possibility of obtaining such a qualification through the London College of Medicine was not pursued by the appellant.)
16.	On 5th November 2004 the appellant emailed the GMC in the following terms: 
"I am thinking of applying to LONDON COLLEGE OF MEDICINE, who is an affiliate of the IUHS University in St Kitts in the West Indies. I gather that IUHS is recognised by WHO and therefore by extension LCM would also be recognised. However I have several concerns – 
a) Does GMC recognise the distance learning pre-clinical education offered by LCM?
b) Does GMC approve of LCM's status and its teaching methods?
c) I understand that LCM is currently being "investigated" to ascertain its standards and facilities. Can you tell me when this is likely to be concluded?
If on the other hand I apply directly to IUHS (which is an approved medical institution also recognised in the US and by WHO) in St Kitts, but complete the pre-clinical by distance learning and then complete the clinical in the UK, would that be acceptable to the GMC."
17.	The GMC responded, by email, the same day: 
"Thank you for your email dated 5 Nov 2004. 
The London College of Medicine is under review and within the next few months we should have a decision posted on the GMC website. We will not currently accept the Primary Medical Qualifications as eligibility for taking the PLAB test. 
If your qualification is given by the International School of Health Studies this accepted by the GMC."
18.	The appellant sent a further email on 8th November: 
"Thank you for your prompt reply to my email of 5th November regarding the qualification given by IUHS medical school in St Kitts, which you confirm the GMC recognises and accepts. 
However my question was that if I apply to IUHS and complete the PRE-CLINICAL by distance learning and then complete the CLINICAL in the UK – would that be acceptable to the GMC?"
19.	The GMC replied on 9th November: 
"Thank you for your reply. 
If you have completed the qualification but not an internship, you can still take the PLAB test but the test is concerned with mainly Senior House Officer levels. 
I hope this answers your query, if not please reply and explain further."
20.	The appellant responded the same day: 
"Further to your email of 9th November, my question is that does the GMC recognise and accept the distance-learning (on-line) pre-clinical element of the medical course offered by the IUHS in St Kitts? - PLEASE REPLY YES OR NO. 
As you are aware that the clinical part of the course is in a UK hospital under full supervision and further IUHS is also recognised by the GMC and WHO."
21.	The GMC responded on 10th November: 
"Thank you for your email dated 9 November. 
We have recently had further clarification regarding the medical degrees awarded by the London Medical College/ London School of Medicine (awarded by the IUHS). We are now accepting these degrees for the purposes of limited registration. The medical degree awarded by IUHS is also accepted for the purpose of limited registration. 
You need to be aware that as the GMC does not currently recognise this school, a degree from the university will not automatically lead to registration, students will still have to sit PLAB or fulfil alternative criteria to be eligible for limited registration. The school is not subject to any Quality Assurance or inspection by the GMC and potential students will have to satisfy themselves both that the schools will be awarding a degree from WHO-listed universities when they graduate and that they are financially stable institutions. 
If you have any further queries please contact us and we will do our best to help."
22.	The reference in the GMC’s email of 10th November to limited registration is to a different form of registration, which is no longer available. However, the precise form of registration is of no relevance to the present proceedings. In that email the GMC made clear that the appellant could not rely on the affiliation of the IUHS with the UK-based London College of Medicine.   However, the focus of the appellant’s enquiries then shifted from that affiliation. 
23.	The appellant sent a further email on 14th November, headed "Further Clarification. (Medical Degree from IUHS)": 
"Further to your email of 10th November, I am confused on the GMCs position on the degree provided by IUHS in St Kitts. I therefore have TWO of questions – 
In your reply to me you state that the GMC are now accepting the medical degree awarded from IUHS for the purpose of limited registration, meaning the student having to sit the PLAB exam in order to practice in the UK under supervision. 
You then go on to state in the same email that GMC does NOT CURRENTLY RECOGNISE THIS SCHOOL (IUHS) – even though IUHS is listed on WHO's accredited list of medical schools. 
What is the correct position of the GMC?
Secondly, if the GMC accepts the degree from IUHS, (for the purpose of limited registration) therefore by implication it also accepts and recognises the distance-learning, pre-clinical element in the medical course offered by IUHS. Is my understanding of the situation correct?"
24.	The final response from the GMC was on 16th November 2004: 
"Thank you for your reply. 
The General Medical Council accepts the primary medical degree awarded from International University of Health, St Kitts for the purpose of registration, this entitles the student to sit the PLAB exam in order to by [sic] eligible for registration in the UK."
The appellant relies primarily on this statement by the GMC to found his case on legitimate expectation.
25.	Thereafter, the appellant enrolled on the MBBS course at the IUHS.  He undertook these studies between 2005 and 2011.  His pre-clinical studies were by distance learning, although he spent two months studying in St. Kitts in late 2006.  Having successfully passed the relevant examinations, he then completed his supervised clinical rotations at a number of hospitals in London, Surrey and Sussex.  He passed all his rotations, achieving honours in 13 of the 19 rotations.  He completed his MBBS in July 2011 obtaining a distinction.  This course clearly represented a huge investment of time and money by the appellant.  He estimates that his total expenditure on pre-clinical studies, clinical rotations, books, travel and accommodation on his trip to IUHS and examination fees amounted to over US$ 40,000.  
26.	Having obtained his MBBS, the appellant wished to proceed to the next stage, a foundation programme doctor’s post which he wished to take up at a hospital in the United Kingdom in August 2012.  Because he was relying on an overseas PMQ, he needed to take and pass the PLAB examination.  He also needed to obtain provisional registration with the GMC and so he contacted the GMC. 
27.	On 14th November 2011 the GMC responded to his enquiry.  In an email Ms. Jennifer Cooper, Investigation and Intelligence Officer at the Registration Directorate of the GMC set out the 2010 criteria and continued:
“Having considered the information provided to us, it appears your [PMQ] is not currently acceptable to the GMC.  This is because:
Point 5 of the criteria [i.e. paragraph (e)] requires that at least 50% of the standard course of study is undertaken in the country that awards the qualification.  The standard course of study at IUHS is 4 years/160 weeks.  As you completed only 1 module (Block 9 from 21 October 2006 to 14 December 2006) which equates to just under 8 weeks of study in St. Kitts and Nevis, your primary qualification does not meet the criteria and therefore cannot be considered acceptable for the purpose of sitting the PLAB test or applying for GMC registration.”
That decision to refuse to accept the appellant’s PMQ as an acceptable overseas qualification is the decision challenged in these proceedings.  
28.	A further email dated 13 December 2011 sent to the appellant by Ms. Conway, Head of Registration, Investigation and Intelligence at the GMC, stated:
“Criterion 5 [i.e. criterion (e)] says that a qualification “must not have involved a programme of study when more than 50% of that study (compared to the standard duration of the qualification) has been undertaken outside the country that awarded the qualification”
I understand that your primary qualification was awarded by [IUHS] in St. Kitts.  The Dean of Academic Affairs has confirmed to us that the normal duration of the Programme you undertook is 160 weeks, and that all of your studies were undertaken outside St. Kitts, apart from a period of a little under eight weeks, between 21 October 2006 and 14 December 2006.  I am afraid it is therefore clear that your qualification is unacceptable for the purposes of registration in the UK.  I realise that this is very disappointing news.
The Medical Act 1983 does not provide a statutory right of appeal in these circumstances.  I hope I can explain why.  By law, it is our General Council that decides which overseas qualifications are acceptable for the purposes of registration in the UK; and it has discharged that function by agreeing criteria that all such qualifications must meet.
The current criteria were agreed by the Council in July last year, and published on our website in September 2010.  However, the criteria that they replaced (which were not fundamentally different) had been in place since October 2006.
This is not, therefore, a case where we have made a “decision” on your eligibility for registration.  All we have done is respond to your enquiries and, in doing so, draw your attention to the fact that your qualification does not meet the General Council’s published requirements.  This is something that any internal medical graduate may establish for themselves by referring to the criteria on our website.
I am sorry that I cannot be more helpful.  I hope I have at least clarified matters.” 
The Appeal.
29.	The grounds of appeal advanced by Mr. Drabble QC on behalf of the appellant fall into two categories:
(1)	Challenges to the new criteria adopted in 2006 and 2010.
(2)	 Challenges founded on legitimate expectation.
At the hearing it became clear that the real substance of this appeal lies in the claim based on legitimate expectation.  Accordingly I propose to deal relatively briefly with the challenges to the new criteria.  However, it is appropriate to address them first because they provide part of the context of the case on legitimate expectation.
(1) Challenges to the new criteria.
Unlawful fettering of discretion.
30.	Mr. Drabble submits that the court below was in error in finding that the GMC had not unlawfully fettered its discretion in defining “acceptable overseas qualification” by reference to criteria that do not allow of exceptions.
31.	First, Mr. Drabble submits that the words “if the Council think fit so to direct” in sections 21B(1) and 21C(2) confer on the GMC a general discretion to consider exceptional cases.  The judge rejected this submission in the following terms:
“Neither section 21B(1) nor section 21C(2) gives the GMC a discretion to allow registration where a person does not satisfy the Registrar in respect of the specified criteria: rather, they provide that, even where a person satisfies the Registrar with regard to all of the specified criteria to the Registrar’s satisfaction, the GMC retain the discretion to direct that that person shall not be registered.  That is a true discretion, required to be exercised on the basis of Public Law principles.  However, for the discretion inherent in the emphasised words to arise at all, the Registrar must first be satisfied as to each of the statutory criteria set out… including, in each case, that the applicant has an “acceptable overseas qualification”.  The words brook no other construction.” (at para 44)
I entirely agree with the judge. The words relied on confer a discretion only if the criteria are first satisfied and, furthermore, are in that event limited to a discretion to refuse registration.  That conclusion flows inevitably from the structure of the statutory provisions.
32.	Secondly, Mr. Drabble submits that the GMC has fettered its discretion to consider the appellant’s individual case, notwithstanding that he was able to put forward exceptional circumstances which deserved individual consideration.  Here Mr. Drabble refers to the well known passage in the speech of Lord Reid in British Oxygen Co. Ltd v Minister of Technology [1971] AC 610 at p. 625 and other authority to similar effect.  The judge rejected this submission.  He considered that the requirement for an applicant to hold “an acceptable overseas qualification” is a separate requirement from that that he “possesses the knowledge and skill requisite for embarking upon an acceptable programme for provisionally registered doctors.”  In the judge’s view Parliament clearly intended the GMC, as an expert body, to exercise its own judgement as to what qualifications are adequate for these purposes.  The exercise of that judgement would be subject to the bounds of Wednesbury reasonableness but the judge considered that those boundaries would be wide in the circumstances of the present case.  He concluded that the intention of Parliament was to require the GMC to identify qualifications acceptable to it that would be a condition of an applicant progressing to be registered and to take the PLAB test.  In his view that intention is not defeated, but satisfied, by the identification of criteria that any PMQ must satisfy.  
33.	I agree that it was the intention of Parliament that the GMC should set minimum criteria which an applicant must meet before he can be registered and that that is what the GMC has done.  I also agree with the judge that there is a striking similarity between the position here and that in R v Specialist Training Authority Medical Royal Colleges (Case No. CO/1442/1998: unreported, 5 November 1998) where Dyson J., as he then was, held that the STA was entitled to specify certain minimum criteria which had to be satisfied by every applicant.
34.	Accordingly I do not consider that there was any unlawful fettering of discretion by the GMC.
Irrationality.
35.	Mr. Drabble submits that the judge erred in holding that the retrospective change in requirement was not irrational or arbitrary.  He submits that the broad statutory purpose in section 1(1A) of the Act which underpins the grant of discretionary power to the GMC does not require, still less encourage, the imposition of blanket criteria.  He submits that a blanket policy which excludes high quality candidates who, on the objective evidence, clearly possess the knowledge and skill requisite for practising medicine under supervision, must be contrary to the purpose of the Act and/or irrational.
36.	In approaching this issue the judge emphasised that the rationality of this requirement must be seen in its context which includes the absence of any universally recognised standards for PMQs and the intention of Parliament that the GMC must identify the criteria by which a PMQ will be acceptable.  He considered that the change in criteria reflected the broad concerns identified in the GMC paper of 6th June 2006 and the Registration Committee’s wish to see a requirement of greater association between students, the educational establishment and the degree course, concerns that were carried through to the 2010 deliberations.  He also drew attention to the impracticability of the GMC assessing or verifying the many PMQs issued around the world.  He concluded that, when considered in this context, it was not irrational “for the GMC to insist on a requirement that goes to ensure to a significant degree that the awarding institution has a proper degree of control and supervision over the period of study looked at as a whole.”  I agree with the judge’s reasoning and conclusion.
37.	The judge went on to conclude that the new criteria were not rendered irrational by the lack of any transitional provisions.  For my part, I accept that in principle the GMC would be entitled to change the criteria with immediate effect if it was satisfied on reasonable grounds that it was necessary to bring in the necessary changes with such immediacy.  However, it will be necessary to examine later in this judgment the decision making process which actually occurred in this case.
Proportionality. 
38.	Mr. Drabble submits that Article 2 of the Protocol 1, ECHR is engaged in this case because the decision to refuse recognition to the appellant’s qualification denies him the right to draw profit from the education he has obtained.  Mr. Drabble then goes on to submit that the imposition of a blanket rule, admitting no exception, is not necessary to achieve the aims identified by the GMC and is not objectively justified.  For present purposes it is sufficient to state that I agree with the judge that Article 2 of Protocol 1 is not engaged in these circumstances (see Belgian Linguists (No. 2) (1968) 1 EHRR 252; R. (Sivills) v General Social Care Council [2007] EWHC 2576 (Admin.), Jackson J.) and that therefore resort to principles of proportionality is not appropriate (R. v Home Secretary, ex parte Brind [1991] 1 AC 696). 
(2) Legitimate Expectation.
39.	The Appellant’s case on legitimate expectation is founded primarily on the sequence of emails set out earlier in this judgment and, in particular the GMC’s final response of 16th November 2004. In the alternative, he relies on statements made by the GMC in its website about recognition of overseas degrees.
A clear, unambiguous and unqualified statement.
40.	Before a statement or representation can be relied upon as giving rise to a legitimate expectation it must be “clear, unambiguous and devoid of relevant qualification”. (R. v. IRC, ex parte MFK Underwriting  [1990] 1 WLR 1545, per Bingham L.J. at p. 1569 G-H; R v. IRC, ex parte Unilever plc [1996] STC 681.) As Miss Grey QC submits on behalf of the GMC, this requirement has certainly not been watered down as the principle of legitimate expectation has developed. Thus in R. (Bhatt Murphy (a firm)) v. The Independent Assessor [2008] EWCA Civ 755 we find the following statement by Laws L.J. 
“In the paradigm case of procedural expectations it will generally be unfair and abusive for the decision-maker to break its express promise or established practice of notice or consultation. ... In other situations – the two kinds of legitimate expectation we are now considering [i.e. substantive expectations] – something no less concrete must be found. The cases demonstrate as much.” (at para. 42)
Referring to the situation where it is sought to derive a legitimate expectation from a previous policy he considered that there was a need to establish “a specific undertaking, directed at a particular individual or group by which the relevant policy’s continuance is assured.”  (at para. 43) This is a high preliminary hurdle in the path of a party seeking to establish a legitimate expectation.
41.	A further requirement, identified in the cases early in the development of legitimate expectation, for example in MFK Underwriting, is that the party seeking to rely on the statement or representation must have placed all his cards on the table. This is important because it can define the context in which the statement or representation is made. I consider that in the present case the appellant could not have done more to make clear to the GMC his intentions. In particular, he expressly and repeatedly drew attention to the fact that he planned to undertake the course at IUHS by distance learning. He made entirely clear what his plan was. That much is not in issue.
42.	However, there is a substantial issue between the parties as to the true meaning of the statement made on behalf of the GMC in the final email sent on 16th November. 
“The General Medical Council accepts the primary medical degree awarded from International University of Health, St Kitts for the purposes of registration, this entitles the student to sit the PLAB exam in order to by [sic] eligible for registration in the UK."
On behalf of the appellant Mr Drabble submits that it was an assurance that the qualification for which he was proposing to study would be recognised by the GMC. Mr. Drabble accepts, however, that that assurance could not have been intended or understood to apply in perpetuity and, accordingly, he acknowledges that the appellant could only claim the benefit of it if he completed the course within a reasonable time. On behalf of the GMC, Miss Grey draws attention to the fact that this response of the GMC is expressed in the present tense and she submits that it is no more than an accurate statement of the current position which contains no element of assurance as to the future.
43.	The judge correctly considered that the appropriate test is one of objective intention. He drew attention to the fact that the statutory provisions require the PMQ to be “for the time being accepted by the General Council”. In his view that indicated that the qualification must be acceptable to the GMC at the time of the application for registration and that the criteria for acceptability may change from time to time. He pointed to the fact that all of the emails on which the appellant relies were notably expressed in the present tense and therefore indicated what was acceptable to the GMC at that particular time. He concluded that “there is simply no clear and unequivocal representation in the terms suggested …: there is no representation as to the future, or that the GMC would not change the criteria for acceptable overseas qualifications in the future.” Furthermore, he did not consider it was reasonable in the circumstances for the appellant to consider that the representation included a promise by the GMC that it would not change the criteria for acceptable overseas qualifications during the period the appellant was involved in obtaining it, no matter how long that might be.
44.	The question for consideration is how, on a fair reading of the statement, it would have been reasonably understood by those to whom it was made. (See The Association of British Civilian Internees – Far Eastern Region v. Secretary of State for Defence [2003] QB 1397 per Dyson L.J. para. 56.) In the present context the question is whether it would reasonably be understood as an assurance that the qualification would be recognised in the case of this appellant if he obtained it in a reasonable time.
45.	The statement has to be considered in the context in which it was made. It would have been obvious to the members of the Registration and Education Directorate that the appellant was planning to undertake the course by distance learning and that he was seeking reassurance that when he completed the course the qualification would be recognised by the GMC. The matter is put very clearly by the appellant in his email of 8th November:
“However my question was that if I apply to IUHS and complete the PRE-CLINICAL by distance learning and then complete the CLINICAL in the UK, would that be acceptable to the GMC?”
The fact that the appellant went back repeatedly in an attempt to obtain a clear answer to his question is also highly relevant as part of that context. First, it shows the importance he attached to the information he was legitimately seeking from the GMC. Secondly, it shows that he was trying his utmost to provide a clear statement of his intentions and to obtain a clear unequivocal response to his question.
46.	The literal meaning ascribed by Miss Grey to the response of 16th November makes little sense in this context. A response limited to a statement that the qualification is currently recognised would be accurate but, when considered in its particular context, would be both unhelpful and misleading. In this context, if it had been the intention to limit the response to a statement of the current position and to leave the appellant to take his chance as to whether that would remain the case, the Registration and Education Directorate should have made that clear by stating, for example, that while that was the current position it might change and there could be no guarantee that that would remain the position by the time the appellant qualified.
47.	The question to which this was a response related to the future and the author of the email of 16th November must have appreciated that the response would be understood as relating to the future. On a fair reading in its context it would reasonably have been understood by the recipient as an assurance in relation to the future. It is clear that the appellant understood it in that way and that this was followed by detrimental reliance on the assurance by the investment of time, effort and money in the years which followed in obtaining the qualification.
48.	I am satisfied therefore that the appellant received a clear, unequivocal and unqualified assurance from the Registration and Education Directorate of the GMC, in the email of 16th November, the effect of which was that if he completed the proposed course in a reasonable time the qualification would be recognised by the GMC.
49.	In these circumstances, it is not necessary to address in any detail Mr. Drabble’s secondary submission on this point which is based on statements made by the GMC on its website about recognition of overseas degrees. We do not know precisely what information was included in such statements because that content is no longer available. It is likely that they would have stated that qualifications from WHO-listed institutions were recognised. However, it is not suggested that it would have included any express statement concerning the acceptability of courses involving distance learning.

A pressing and focussed representation.
50.	Clearly, not every departure by a public body from a previously announced policy can give rise to a successful claim founded on a legitimate expectation. In Bhatt Murphy, Laws L.J. refers to “the pressing and focussed nature of the kind of assurance required if a substantive legitimate expectation is to be upheld and enforced” (at paras. 46-7). In this regard he suggests that while in theory there may be no limit to the number of beneficiaries of a promise for the purpose of a substantive legitimate expectation, in reality it is likely to be small if the expectation is to be upheld because, first, it is difficult to imagine a case in which government will be held legally bound by a representation or undertaking made generally or to a diverse class and, secondly because the broader the class claiming the benefit of the expectation the more likely it is that the supervening public interest will be held to justify the change of position of which complaint is made.
51.	Miss Grey seeks to invoke this passage in two ways. First she submits that we do not know how many other prospective students received similar responses from the Registration and Education Directorate of the GMC. However, to my mind this is an unsatisfactory approach. If the GMC wishes to demonstrate, as part of its case that any assurance was insufficiently focussed, that many similar responses were made, it must produce evidence to support that contention. In the absence of any such evidence, I am not prepared to assume that there were widespread similar responses or that there are many others in a similar position to the appellant. 
52.	Secondly, Miss Grey points to Mr. Drabble’s secondary case on this issue, i.e. the statements made on the website, as undermining his primary case because of the breadth of the unidentifiable audience to which those statements were made. She submits that it is difficult to imagine the GMC bound by representations made generally to such a diverse class. The court is not in a position to determine whether others who read and relied on statements on the website may be able to mount a case on legitimate expectation. As the statements on the website have not been preserved, we do not know precisely what was said or the circumstances of those who may have read them. As a result, we do not know whether there may be others in a position comparable to that of the appellant. However, given that this change of policy was first initiated in 2006, I would expect that the GMC would, by now, be aware of any similar claims. Moreover, I note that the 2010 paper draws attention to the fact that only a small number of international medical graduates were deemed not to hold an acceptable PMQ. But, in any event, in the particular case with which we are concerned, Mr. Drabble is able to point to specific statements in the exchanges of emails, directly focussed not simply on the universities and institutions whose degrees are recognised but also – a matter of vital importance in the light of the specific ground of refusal to recognise the appellant’s degree – on the fact that the course proposed by the appellant is to be undertaken by distance learning. To my mind, the appellant’s repeated requests for clarification in succeeding emails serve to focus attention very effectively on his specific position. I consider that this requirement is satisfied.
Is reliance on the representation contrary to the terms of the statute?
53.	On behalf of the GMC it is submitted that reliance by the appellant on the representation contained in the email of 16th November is contrary to the terms of the Medical Act 1983. Miss Grey draws attention to the definition of an “acceptable overseas qualification” in section 21B as a qualification “for the time being accepted by the General Council as qualifying a person to practise as a medical practitioner in the United Kingdom.” (emphasis added) She submits that the statute requires the GMC to exercise judgement on a periodic basis as to what qualifications should be accepted and that therefore it cannot be required to apply an outdated policy which it no longer considers appropriate.
54.	Without deciding the point, the judge considered it at least strongly arguable that, if the representation claimed had been made, to disenable the GMC from resiling from it would be contrary to the express provision of the statute which requires the GMC to identify qualifications that it considers acceptable at any particular time. In his view a representation by the GMC that fetters its ability to change the criteria upon which qualifications are judged is, at least arguably, both unlawful and contrary to its statutory obligations.
55.	To my mind, the statutory scheme of the Medical Act 1983 does not exclude the operation of the principle of legitimate expectation in the particular circumstances of this case. The statutory duty has to be exercised in accordance with established principles of substantive fairness. Those principles necessarily take account of the statutory duty and do not lead invariably to the result that effect is given to the legitimate expectation. For example, if there were a compelling justification for the immediate implementation of a new policy without any transitional measures that would not be an abuse of power and any legitimate expectation would be overridden. For the reasons set out below, I do not consider that any such incompatibility between the principle of legitimate expectation and the statutory duty arises in the particular circumstances of this case.
If there is a legitimate expectation, is the GMC entitled to frustrate it?
56.	Although at an early stage in his submissions Mr. Drabble presented the expectation for which he contends as a procedural legitimate expectation, it is clear to me that it is substantive in character. As this area of the law has developed, a distinction has been identified between a procedural expectation to be consulted or in some way involved in the decision making process before there is a departure from the assurance given on the one hand and an expectation to enjoy the substantive benefit or advantage promised on the other. Here, the appellant wants his qualification to be recognised and therefore the case falls into the second category. 
57.	The Court of Appeal in R. v. North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 was addressing this category of case when it observed:
“Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.” (at para. 57, original emphasis)
58.	The burden of proof on this issue was addressed by Lord Dyson in Paponette v. Attorney General of Trinidad and Tobago [2012] 1 AC 1 as follows:
“The critical question in this part of the case is whether there was a sufficient public interest to override the legitimate expectation to which the representations had given rise. This raises the further question as to the burden of proof in cases of frustration of a legitimate expectation.
The initial burden lies on the applicant to prove the legitimacy of his expectation. This means that in a claim based on a promise, the applicant must prove the promise and that it was clear and unambiguous and devoid of relevant qualification. If he wishes to reinforce his case by saying that he relied on the promise to his detriment, then obviously he must prove that too. Once these elements have been proved by the applicant, however, the onus shifts to the authority to justify the frustration of the legitimate expectation. It is for the authority to identify any overriding interest on which it relies to justify the frustration of the expectation. It will then be a matter for the court to weigh the requirements of fairness against that interest.” (at paras. 36, 37.)
59.	Under the Medical Act 1983 the GMC is given the responsibility of deciding which qualifications granted outside the United Kingdom it will, for the time being, accept. In doing so it must act in accordance with its main objective, namely to protect, promote and maintain the health and safety of the public. The GMC is clearly entitled to adopt, from time to time, a new policy in relation to the recognition of overseas qualifications and, depending on the view it takes of the relevant courses, may well be under a duty to do so. For the reasons set out earlier in this judgment, I consider that the new criteria adopted by the GMC in 2006 and again in 2010 were, in themselves, lawful. The question which arises for decision in this part of the case is, to my mind, a much more specific one: was there a sufficient public interest to justify changing the rules so as to deny recognition to qualifications which were obtained following a course of study which involved a substantial distance learning element, without making transitional provision for the case of the appellant who had received an assurance that his qualification would be recognised if obtained within a reasonable time. Within this context, it is for the GMC to prove that its refusal to honour its assurance to the appellant was justified in the public interest. There is no burden on the appellant to prove that it was not justified.
60.	This leads directly to the question of the appropriate standard of review in such a case. In Coughlan (at para. 58) this court considered that in a case of substantive legitimate expectation the court has to decide for itself whether there is a sufficient overriding interest to justify a departure from what has been previously promised. As Laws L.J. explained in Bhatt Murphy:
“The establishment of any policy, new or substitute, by a public body is, in principle, subject to Wednesbury review. But a claim that a substitute policy has been established in breach of a substantive legitimate expectation engages a much more rigorous standard. It will be adjudged, …, by the court’s own view of what fairness requires.” (at para. 35)
61.	In applying an objective standard of fairness, in seeking to establish whether a refusal to honour a promise is an abuse of power, the court must weigh the competing interests. As appears from a particularly illuminating passage, once again from Laws L.J., this time in R. v. Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115, the degree of intensity of review will vary from case to case, depending on the character of the decision challenged.
“80. As it seems to me the first and third categories explained in Coughlan are not hermetically sealed. The facts of the case, viewed always in their statutory context, will steer the court to a more or less intrusive quality of review. In some cases a change of tack by a public authority, though unfair from the applicant’s stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker, which they cannot wear. The local government finance cases, such as R v Secretary of State ex parte Hammersmith [1991] 1 AC 521, exemplify this. As Wade and Forsyth observe (Administrative Law , 7th edn. p.404): 

“Ministers’ decisions on important matters of policy are not on that account sacrosanct against the unreasonableness doctrine, though the court must take special care, for constitutional reasons, not to pass judgment on action which is essentially political.”

81. In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players. Here, with respect, lies the importance of the fact in Coughlan that few individuals were affected by the promise in question. The case’s facts may be discrete and limited, having no implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes. In such a case the court’s condemnation of what is done as an abuse of power, justifiable (or rather, falling to be relieved of its character as abusive) only if an overriding public interest is shown of which the court is the judge, offers no offence to the claims of democratic power.

82. There will of course be a multitude of cases falling within these extremes, or sharing the characteristics of one or other. The more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the court’s supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy.” 

62.	In considering the justification put forward by the GMC the court must give weight to the fact that it is an expert professional body charged by Parliament with the specific function of deciding which overseas medical qualifications should be recognised and that it is required to act to protect, promote and maintain the health and safety of the public. The courts would, therefore, normally expect to treat with considerable respect its assessment of the need for the adoption of a particular policy. However, it is necessary to subject the proposed justification to critical analysis and to weigh it against the competing interests in favour of honouring the assurance given to the appellant.
63.	In making her submissions on this part of the case, Miss Grey emphasised that the decision taken by the GMC in 2006 adopting new criteria was a response to a general problem. It was not intended simply to address a small number of particularly egregious abuses which had been identified. During the course of argument we were taken to the papers which were before the Registration Committee when it took its decisions in relation to recognition of overseas qualifications in June 2006 and July 2010.  The 2006 paper explains the background.  Prior to 1995 the GMC maintained its own list of acceptable overseas qualifications.  They numbered around 900.  In 1995 the GMC decided that it was no longer feasible to maintain this list based upon its own assessment and decided that the list of qualifications published by the World Health Organisation (WHO) should be used as an alternative.  The effect of this decision was to expand the list of PMQs that would be acceptable for registration from around 900 previously recognised by the GMC to around 2000 on the WHO Directory.
64.	The 2006 paper explains that in October 2005 a BBC investigation led to allegations about one of the primary medical qualifications listed in the WHO Directory.  This revealed affiliations claimed between a private UK-based medical college and a university in Senegal which appeared in the WHO Directory.  The paper recorded that for some years the GMC had been aware of and concerned about the emergence of private UK-based medical colleges claiming to offer medical degree level courses.  Some of the colleges began to claim that they had secured accreditation via the WHO Directory because they had affiliations with universities issuing PMQs in other countries.  The paper referred in particular to two such private colleges in the United Kingdom.  At worst the PMQs which the GMC had accepted had not been issued by the WHO Directory universities at all.  More generally, the 2006 paper recorded that during the course of the investigations the GMC had identified that some WHO Directory PMQs were issued by a university in one jurisdiction following a course of study undertaken wholly or substantially in another jurisdiction.  Some were awarded following a course of study substantially less than 5,500 hours, which was usual for UK courses.  Some were awarded following a course of study undertaken without face-to-face teaching i.e. by correspondence or distance learning. Some were awarded by universities that had no physical address on the WHO Directory.  The 2006 paper also raised concerns about whether schools claiming to be affiliated to universities listed in the WHO Directory were in fact linked to them and about the fact that the WHO did not at that time accredit medical schools.
65.	The 2006 paper addressed possible alternatives to the use of the WHO Directory.  It did so against the background that a single accreditation system for evaluating the quality and rigour of all international medical schools did not exist nor was one likely to exist in the near future.  The 2006 paper identified a number of options for the immediate future.
(1)	The first option was to continue with the then current arrangements using the WHO Directory and to continue to use the PLAB test and other routes to limited registration in order to screen out any doctor who did not have the requisite knowledge, skills and experience for limited registration.  The paper recorded that this option would have the advantage of not requiring any change to the current arrangements which might be subject to challenge by those who would claim to be disadvantaged.  However, it noted that some PMQs issued by institutions in the WHO Directory had been completed in a much shorter duration than would be accepted in a UK or EEA course (i.e. a minimum of 5,500 hours).  It noted that others have included significant elements studied by correspondence with others undertaken outside the country which issues the diploma and without sufficient quality checks on the degree course.  It explained that following this option would leave the GMC dependent on the PLAB test as an effective screening tool.  However, concerns had been expressed at the growth of private colleges schooling candidates to take the PLAB test and it was suggested that this may no longer be effective in screening out candidates who did not have the depth of underlying knowledge and skills for limited registration.
(2)	A second option was to create a GMC accredited list of acceptable medical schools.  However, this would be likely to give rise to the same practical difficulties experienced before 1996.  Furthermore, reference was made to the fact that any significant reduction in the list of acceptable PMQs was likely to invite a challenge from those who would claim to have a legitimate expectation that their PMQ, whether already held or currently being studied for, would be acceptable for the purposes of GMC registration.  Furthermore, the problems identified [i.e. courses shorter that 5,500 hours, correspondence teaching and courses taught outside the jurisdiction of the body that awards the PMQ] did not necessarily apply to all the PMQs awarded by a single university.
(3)	The third option identified was to review the definition of an acceptable PMQ in the light of the GMC’s investigations.  It was suggested that the EU Directive due to come into force in October 2007, which would not be applicable to non-EEA nationals with non-EEA qualifications, might provide a good basis for insisting on some sort of minimum good practice for all overseas applicants.
66.	The 2006 paper proposed that the third option
“would appear to provide the best way forward in the short term, whilst minimising the amount of administrative cost and potential risk of challenge of the other two options.”
The paper proposed that in that way the GMC should reconsider its definition of an acceptable PMQ, taking account of concerns that some were awarded after a course of study undertaken wholly or substantially outside the country that awarded the PMQ, some were much shorter than a UK PMQ, some PMQs were obtained after a correspondence course and some PMQs were issued by organisations that appear to have no physical address, making independent verification very difficult.
67.	The Registration Committee adopted this third option.
68.	In July 2010 the Council of the GMC was asked to adopt revised criteria. Extensive reference was made at the hearing before us to the papers before the Council on that occasion.  The 2010 paper expressed concerns as to the way in which the RAP had interpreted the criteria adopted in 2006.  In relation to criterion (d) of 2006 i.e. that requiring that the qualification must not have been gained following a course of study undertaken wholly or substantially outside the country that awarded the PMQ, the 2010 paper explained, first, that this criterion is necessary to deal with a small number of students who move from university to university in order to obtain an acceptable overseas qualification.  It stated that in some cases not only may the students spend as little as twelve months studying under the ambit of the overseas institutions, but also this may not have included any time in the country awarding the qualification.  This was not the position in the case of the appellant.  Secondly, the paper identified a particular problem in medical schools based in the Caribbean where there was a high density of medical schools but insufficient hospital positions to allow the students to undertake practical training.  As a result the clinical rotations were undertaken outside the country awarding the qualification, usually in hospitals in the United States or the United Kingdom.  The paper stated that the GMC had been unable to establish the nature of these arrangements and in particular the extent of the supervision that such students received or the measures the medical schools had in place to ensure the quality of the training received by students whilst overseas. Here I note that the appellant did, indeed, complete his rotations in the United Kingdom.  He did so alongside students from UK universities and medical schools and he was able to provide the GMC with detailed information and references in relation to his rotations, in the majority of which he obtained honours.
69.	It is, however, right to draw attention to the fact that the appellant spent just eight weeks of the standard four year course physically based in St. Kitts (from 21 October 2006 to 14 December 2006). The papers of 2006 and 2010 reflect a clear view on the part of the GMC that a substantial distance learning element in a course leading to a PMQ is undesirable, in particular because it does not permit sufficient engagement between students and teachers.  However, beyond such general concerns, these papers do not point to any specific danger to the public arising from distance learning.  The only specific criticisms of distance learning made in these papers are that it might conceal other vices which it is not suggested were present in this appellant’s education or training.
70.	In her first witness statement, Frances Conway, Head of Registration, Investigation and Intelligence at the GMC, considers in greater detail the justification for the adoption of a new policy in relation to distance learning.  The principal matters to which she refers may be summarised as follows:
(1)	She points to the requirements regarded as necessary to deal with the issue of “graduate tourism” i.e. the small numbers of students who move from university to university to obtain an acceptable overseas qualification.
(2)	It was an important element of the reforms that they should address the issue of colleges which had no genuine link to the institution purportedly awarding the degrees.
(3)	The requirement of physically spending time in the country of qualification at the awarding institution ensures that there is a closer genuine link between the awarding institution and the student and the qualification he or she obtains.
(4)	The approach has helped to highlight other unacceptable practices, namely those identified in the 2006 paper, clarifies for potential students that they are unacceptable for those intending to practise in the United Kingdom and allows such arrangements to be investigated and dealt with appropriately by the relevant authorities.
(5)	 It prevents graduates from such schools entering the profession and putting the public at risk.
(6)	Some organisations may fail to provide adequate facilities for their students.  The 50% criterion requires students physically to attend the awarding institution and to access all the available facilities.  If they find these facilities are lacking then they are in the position to make a decision about continuing their course of study at an early stage.
71.	Miss Conway does not claim that the 50% requirement alone ensures a proper standard of education.  However, she explains that the aim is to ensure that, for those intending to practise in the United Kingdom, the opportunities for direct contact with teaching staff, access to relevant support and facilities and active engagement in their medical education will be optimised.  She states that it is believed to be one of the most effective safeguards available to the GMC in its endeavour to ensure that the standard of medical education provided by overseas awarding bodies is satisfactory.  Finally, she emphasises that the 50% requirement is just one criterion which makes up the definition of what is an acceptable overseas qualification.
72.	I do not intend to be critical of Miss Conway in any way, but not all of the factors which she identifies are apparent from the contemporaneous documents and there may be an element of ex post facto justification on the part of the GMC here.  The justifications summarised under heads (1), (2) and (4) relate to distinct abuses which are not alleged to have occurred in the case of the appellant’s training.  So far as head (6) is concerned, the fact that some universities may fail to provide facilities for students in residence is not a good reason for refusing to recognise distance learning qualifications.  It has no bearing on the quality of qualifications obtained by distance learning.  In the same way, the fact that presence at the teaching institution may help reveal other deficiencies or abuses, if such exist, is not in itself an objection to distance learning.
73.	So far as possible risk to the public is concerned, Miss Conway’s statement in her first witness statement that the 50% rule “also prevents graduates from such schools entering into the profession and putting the public at risk” is little more than a bold assertion, with little to substantiate it.  In the contemporaneous documents there is no evaluation of the degree of risk arising from distance learning in itself.  Rather, distance learning is considered in the 2006 paper as one factor in conjunction with courses of shorter duration than would be accepted in the United Kingdom and situations where there are insufficient quality checks on degree courses.  Furthermore, it is necessary to consider this aspect of the case in the context of the other requirements of professional training.  I accept that the 2006 paper expressed a reservation about the use of the PLAB test as an effective screening tool.  However the specific concern which was raised was that, with the growth of private colleges schooling candidates to take the PLAB test, it may no longer be effective in screening out candidates who do not have the depth of underlying knowledge and skills for limited registration. (I note, however, that the GMC’s website currently describes the PLAB test as “the main route by which International Medical Graduates (IMGs) demonstrate that they have the necessary skills and knowledge to practise medicine in the UK.”)  It is, to my mind, highly material to the present issue that, before he would be able to practise medicine independently in the United Kingdom, the appellant would be required to pass a number of further tests.  He would be required to pass an objective, structured, clinical examination (OSCE) as part of a Foundation Programme Clinical assessment.  He would be required to pass both parts of the PLAB and a Situational Judgement Test. He would then be required to complete successfully Foundation Year 1 and Foundation Year 2. It is correct that during those two foundation years the appellant would be practising medicine; however, he would be doing so under supervision.
74.	In this regard Mr. Drabble also draws attention to the fact that in 2009 the RAP allowed appeals in three cases despite the fact that the qualifications obtained by the students concerned did not meet the 2006 criteria. However, this does not really advance the appellant’s case because the GMC has consistently maintained that it should not have done so.
75.	I have no doubt that face-to-face learning is superior to distance learning and that the steps taken by the GMC to require that courses include a greater proportion of direct teaching will have effected a considerable improvement.  However, it is important not to lose sight of what is under consideration here.  It is not whether the GMC is justified in refusing recognition to certain distance learning qualifications, but whether it was justified in deciding to do so without introducing any transitional provisions with the result that it refused to honour the assurance given to the appellant.  To my mind the reasons advanced by the GMC are less than compelling as a justification for introducing the new policy with immediate effect and without any mitigating measures for those already committed to courses.
76.	The introduction of transitional measures would, no doubt, delay the full implementation of the new policy. Furthermore, in her submissions Miss Grey placed emphasis on what she claimed would be the impracticability of any mitigating measures or transitional provisions which might be adopted by the GMC.  Here she refers, in particular, to the difficulties of assessing overseas qualifications, the GMC having no power or resources to accredit overseas degrees.  She also points to the difficulty of discretionary evaluation in individual cases.  However, in this regard I note that the 2010 paper specifically draws attention to the fact that only a small number of international medical graduates are deemed not to hold an acceptable PMQ.  It states that in 2008 there were five such cases, in 2009 there were three, all of which were overturned by the RAP on appeal, and in the period January to 13 July 2010 there were ten such cases.
77.	It is a striking feature of the present case that there is no evidence that the GMC, when introducing its new rules in relation to distance learning in 2006 and 2010, gave any consideration to the effect of the introduction of the new rules on those currently following courses involving a high proportion of distance learning.  
78.	The author of the 2006 paper clearly had in mind the possibility of legal challenges to the various options under consideration.  He states that continuing with the present arrangements would have the advantage of avoiding any challenge by those who would claim to be disadvantaged by new arrangements.  Furthermore, when considering the second option i.e. recreating a GMC accredited list of acceptable medical schools, he makes the point that: 
“…any significant reduction in the list of acceptable PMQs is likely to invite a challenge from those who would claim to now have a legitimate expectation that their PMQ (either held or currently been studied for) would be acceptable for the purposes of GMC registration.  Over the years the GMC has routinely made statements about the acceptability of PMQs.  These statements have never previously been qualified (by for example stating the policy was subject to change or variation at any time).”  
Here, the paper concentrates on the problem from the point of view of the GMC and does not address it from the point of view of those seeking to qualify to practise. When we come to the third option – the option subsequently adopted – we find no consideration at all of how this proposal might affect those currently following such distance learning courses or the potential unfairness to them of a change in the rules without the cushion of transitional provisions.  On the contrary, one of the reasons for recommending the third option is said to be that it will minimise the potential risk of challenge under the other two options. 
79.	I accept that the way in which the RAP between 2006 and 2010 applied the provision permitting further review did, in fact, operate to mitigate the effect of the new criteria adopted in 2006.  However, there is nothing in the contemporaneous papers to support the view that this was introduced in order to mitigate the impact of the new policy in the case of students currently pursuing such courses. On the contrary, the GMC has maintained consistently that the 2006 criteria did not confer such a discretion and, in any event, it acted in 2010 so as to make clear that the RAP did not have such a discretion.
80.	Similarly, in the 2010 paper we find a recommendation that the 2010 modification should be given immediate effect.
“As we do not accredit overseas institutions, the fact that a qualification was deemed acceptable at some point in the past cannot lead to it being acceptable in perpetuity.  Instead, we would expect that, at the point of determining the application, the qualification must satisfy the agreed criteria and the qualification must be currently acceptable to the GMC.” (at para. 31). 
There is in the 2010 paper, no consideration of the position of students who are already pursuing a distance learning course. 
81.	As we have seen, in 2006 the GMC was aware, at the very least, that over the years its officials had routinely made statements about the acceptability of the PMQs which had never been qualified by stating that the policy was subject to change or variation at any time.  Nevertheless it appears that in taking these decisions in 2006 and again in 2010 no consideration was given to whether it was necessary to introduce the new rules with immediate effect or to the consequences of doing so.  This in itself seems to me sufficient to lead to the conclusion that the decision to apply these rules to the appellant should be quashed.  At the very least, the GMC should have taken account of the impact of its decision to depart from its previous policy with immediate effect on the appellant and anyone else who received a similar specific assurance.  It should have done so before deciding whether to change course.  Failure to do so vitiates the decision on Wednesbury grounds.  This is the first category of case considered by the Court of Appeal in Coughlan (at para. 57).  Similarly in R. (Bibi) v Newham Borough Council [2002] 1 WLR 237, the failure of the local authority properly to take account in its decision making process of the legitimate expectations to which it had given rise many years previously led to the conclusion on Wednesbury principles that it had acted unlawfully (at paras. 49-51).  By the same token, the failure of the GMC to take account of the impact of its new policy on those currently pursuing such courses vitiates its decision.
82.	However, this may not be sufficient to dispose of this appeal. Miss Grey submitted that such a basis of decision would not prevent the GMC from reconsidering the matter and taking a new decision.  Moreover, the submissions made on behalf of the appellant advance a more fundamental case.  It is his case that, as a matter of fairness, the effect of his substantive legitimate expectation is that it is not open to the GMC to refuse to recognise his qualification.  That case now has to be addressed.
83.	In that context, I consider that the omission of the GMC to consider the impact of its change of policy on those currently pursuing distance learning courses has a wider significance.  When the court considers the fairness of overriding a substantive legitimate expectation, the standard of review is a sliding scale.  (R. v. Secretary of State for Education and Employment, ex parte Begbie per Laws L.J. at paras. 80-2, cited above at para. 61.) Normally, the court would accord a considerable degree of respect to a specialist body such as the GMC which is required by Parliament to decide which qualifications should be recognised.  However, in the present case there is no reasoning emanating from the GMC at the time the decisions were taken leading to the conclusion that distance learning was such a problem as to require an immediate refusal to recognise the qualifications of those currently pursuing distance learning courses.  Nor is there any contemporaneous paper dealing with the steps that might have been taken to mitigate the impact of the change of policy on persons in that position.
84.	There are present in this case further factors going to the evaluation of unfairness all of which support the appellant’s case.  They may be summarised as follows:
(1)	We are not concerned here with an assurance or representation which is derived from a former policy or a course of conduct.  Rather, the claimed legitimate expectation is founded on an express statement made by a person held out by the GMC as competent to give such advice and which, for the reasons set out above, I consider could only have been reasonably understood in one sense.
(2)	A substantive legitimate expectation is more likely to be respected where it arises from a representation to an individual or a small class, for the reasons given by Laws L.J. in Bhatt Murphy referred to earlier in this judgment.  In the present case, the appellant was the recipient of an assurance which was directed to him personally and was a response to the particular circumstances of his case.
(3)	There can be little doubt as to the importance of the expectation to the appellant.  At the time of his enquiries of the GMC he was 46 years of age and contemplating a change of career.  It had been his ambition throughout his adult life to qualify and practise as a doctor and he was now in a position to take steps to achieve this.  Furthermore, the staff at the Registration and Education Directorate of the GMC would have been well aware that the information they gave to potential students would be of vital importance to their future careers.
(4)	While detrimental reliance is not a condition precedent to the existence of a substantive legitimate expectation in public law, its presence may be an influential consideration in determining what weight should be given to the legitimate expectation when evaluating the balance of fairness.  In this case detrimental reliance is present in abundance.  The appellant states that, given that he had lived in the United Kingdom for some forty years and always intended to practise as a doctor in the United Kingdom, he would not have enrolled on the MBBS course at IUHS unless he had been given an unequivocal assurance that the qualification he would obtain on completion was acceptable to the GMC.  He undertook a course which was extremely demanding in terms of time and effort.  The total financial cost to him of following the course was in the region of US$ 40,000.  He had to work part-time as a locum to fund the course and as a result he had little or no leisure time.  This imposed considerable strains on the appellant and his family. 
(5)	The decision of the GMC not to recognise the appellant’s qualification is not in the macro-political field and, as appears above, the number of persons who may be affected by upholding the legitimate expectation in this case is likely to be small.
85.	I have, therefore, come to the conclusion that it was not open to the GMC to change its policy in 2006 or again in 2010 without adopting some transitional provision that would cater for the case of this appellant.  I am unable to identify any sufficient public interest which outweighs the unfairness to the appellant of refusing to honour the assurance given and to recognise his qualification.  There was considerable discussion before us as to what form that transitional provision should have taken.  Mr. Drabble identified three possible options:  the application of the pre-2006 rules to candidates who commenced a course included in the WHO Directory before 2006, consideration of each individual case on its merits by the RAP and delayed introduction of changes to allow affected students to plan.  In this regard Mr. Drabble drew attention to a recent decision by the GMC on 27th September 2012 to change the regulatory framework in relation to courses delivered by a UK university but at an overseas campus.  This announcement recognises the need for any changes to be prospective only and emphasises that it should not affect those already admitted under the existing arrangements.
86.	I consider that it is neither necessary nor appropriate for this court to identify what transitional provisions should have been adopted, given that it is clear that in this case it would have been open to the GMC to adopt some form of transitional provision which would have satisfied the appellant’s legitimate expectation. Indeed, Miss Grey accepted that the court does not have to decide what the transitional provisions should have been.  Moreover, it seems to me that their precise form should be a matter for the GMC.
Delay
87.	Miss Grey makes two further submissions, both relating to the considerable passage of time since the change of policy in 2006.
88.	First, she submits that the GMC could not be taken to have given an assurance that the IUHS qualification would be recognised in perpetuity, but only for a reasonable time.  The course in question was a four year course but it took the appellant six years to complete it.  This delay, she submits, had caused any assurance to lapse.  I accept that the assurance could only be invoked if the qualification were obtained within a reasonable time.  However, I have no doubt that in the particular circumstances of this case the course was completed in a reasonable time.  The four year course was available to the appellant only because he already had a B.Sc., so the GMC should have had in contemplation the possibility of students embarking on a six year course.  Furthermore, there has to be some flexibility in this regard.  The appellant has explained that while following this course of study he had to work part-time as a locum pharmacist to fund the course.  In addition, he was subject to additional strains as a result of his wife’s illness.  In these circumstances, the progress he made and the results he achieved were commendable.  I have come to the firm conclusion that the assurance had not lapsed by the time the appellant sought to invoke it.  
89.	Miss Grey observed, in passing, that the irony of the present case is that had the appellant completed his course in the standard four years, the qualification he had obtained would have been considered by the GMC before the second change of policy in 2010 and would have been dealt with by the RAP.  I attach no weight to this consideration, not least because the position of the GMC has been and remains that the RAP was not entitled to act as it did.  
90.	Secondly, Miss Grey relies on the power under s. 31(6) Senior Courts Act 1981 to refuse relief on grounds of delay if the court considers that it would be detrimental to good administration.  She submits that if the claim had been brought at or near the time at which the criteria changed in 2006, remedies would have been relatively straightforward and would have been likely to have caused relatively little delay.  Furthermore, she submits that if this challenge had been brought closer to the dates at which the criteria were changed, it would have been possible for the GMC to consider whether there were any additional measures that feasibly could be put in place to deal with the situation, or the appellant could have been advised to alter his chosen course of study at an earlier date so as to ensure that it complied with the new criteria.
91.	Arguments based on the alleged delay, as opposed to the nature of the assurance given by the GMC, have failed at earlier stages in these proceedings.  I accept that in an appropriate case it would nevertheless be open to this court to refuse to grant relief on grounds of delay.  However, I have no hesitation in rejecting this submission.  I am totally unpersuaded that there is potential for prejudice to good administration by the grant of relief in this case.  In this regard, I draw attention to my conclusion as to the number of persons likely to be in a similar position to the appellant.  Furthermore, the nature of the assurance given by the GMC in this case and the duration of the course which it was understood the appellant proposed to undertake were such that it was likely to be a long time before the assurance could be relied upon.  When the appellant was refused permission he acted promptly to challenge the decision.
92.	Finally, I should record that, following the completion of argument before us, the GMC applied for permission to put in evidence further emails which had passed between the appellant and the GMC in 2009 and 2010. For my part, I would refuse permission. As the GMC accepts, this evidence could, with the exercise of reasonable diligence, have been obtained by it before the hearing below. Furthermore, I do not regard these further emails as potentially influential in relation to the issues in this case.
93.	For these reasons I would allow the appeal. In the particular circumstances of the appellant’s case the GMC is not entitled to go back on the assurance which it gave him. The relief granted should be specific to the appellant and should compel the GMC to recognise his PMQ for the purposes of the Medical Act 1983.
LORD JUSTICE LLOYD : 
94.	I agree.
THE MASTER OF THE ROLLS :
95.	I also agree.