The RCGP’s exam policy puts some disabled GP trainees at a disadvantage and is ‘unlawful’, the High Court has ruled in a ‘landmark’ judgment.
Dr Marwa Karmakar, a GP trainee who was supported by the BMA, brought legal action against the RCGP’s policy to disallow re-sits for trainees who received a ‘late diagnosis of a disability’ and had failed previous exam attempts without reasonable adjustments.
The trainee had failed five attempts at the Applied Knowledge Test (AKT), two of which were after her diagnosis for neurodiversity and were scored notably higher than the first three.
In January 2023, the RCGP refused Dr Karmakar’s request to void the first three attempts since she had not had reasonable adjustments during these exams.
The college’s policy is that it ‘cannot annul or void any previous attempts for a trainee who retrospectively applies for reasonable adjustments, either for a more progressive disability or a new disability’.
But the court ruled that the college ‘failed entirely to provide a coherent justification for its policy’ and that the rule is ‘irrational’.
The judge also ruled that the RCGP’s ‘attempts policy’ for the AKT should be ‘quashed’.
When the BMA first announced legal action in December last year, the RCGP said it ‘strongly refutes the allegations’ and is committed to ensuring the MRCGP examination is ‘lawful, consistent, and fair to all trainees’.
In response to the High Court’s ruling, published yesterday, the college said it will be ‘considering’ the details of the judgement before taking any action.
The claims
- Dr Karmakar sought to challenge a decision of the College from January 2023 refusing to grant her a further attempt at the AKT and the lawfulness of the rule generally.
- The BMA sought to challenge the lawfulness of the RCGP’s policy as it applies to both the AKT and RCA.
Both argued that the ‘attempts policy’ amounts to an unlawful fettering of discretion, is irrational, breached the public sector equality duty and was inconsistent with other requirements of the Equality Act 2010.
Source: High Court ruling
Both the BMA and Dr Karmakar put in claims, which the court heard together (see box), but ruled that the BMA’s claim was ‘out of time’ and was therefore dismissed.
Summarising the case, the judge said: ‘This case concerns the lawfulness of a rule, or policy, adopted by the College that it would permit only four attempts at each of those tests, even in circumstances where a candidate discovers, after sitting a test, that she has a disability which, if known at the time, would have entitled her to “reasonable adjustments”, including additional time for the taking of the test.’
During the judicial review proceedings, the college argued that it ‘has no power’ by which a candidate could be granted permission to resit after four or five failed attempts, even when there is a late diagnosis of neurodiversity.
The judge, Mr Justice Garnham, ruled that this is ‘patently incorrect’ and that the RCGP ‘plainly does possess the power to agree additional attempts’.
Responding to the college’s argument that its attempts policy ‘ensures patient safety’, the judge declared that ‘public safety cannot conceivably be put at risk by a policy that gives doctors with neurodiversity additional opportunities to pass the relevant exams’.
The judge continued: ‘Furthermore, standing back from the fray, I can see no justification that could be advanced for an arrangement that says it is right to allow disabled candidates who know of their disability to benefit from, say, additional time in which to sit their examinations, but “not possible” to make equivalent allowance for disabled candidates who discover their disability after failed attempts at the tests.
‘That different treatment is irrational. t is different treatment between classes of disabled people depending simply on when they discover their disability.’
As such, Dr Karmakar’s challenge has ‘succeeded’ on ‘common law grounds’, which ‘are applicable in principle to the generality of candidates for membership of the College’.
Ruling in full
The judge concluded that:
- this matter is justiciable;
- it does not turn on matters of academic judgment;
- the claim by Dr Karmakar is in time and, in any event, permission to apply for JR has already been given. The claim by the BMA is out of time, I decline to extend time and the BMA’s application for permission is dismissed;
- judicial review is an appropriate remedy;
- the College did not unlawfully fetter its discretion; but
- its decision in Dr Karmakar’s case was irrational; its policy on re-sitting the AKT was irrational;
- the College was not in breach of the Public Sector Equality Duty;
- the College was not in breach of its duty to make reasonable adjustments;
- the College was not guilty of indirect discrimination.
BMA Council chair Professor Phil Banfield said the union is ‘delighted’ that the High Court has ‘vindicated’ their efforts to support disabled doctors who have been ‘treated unfairly’ by the RCGP.
He continued: ‘The GP candidate has successfully argued that the College was acting unlawfully and putting its disabled trainees at a significant disadvantage.
‘Today’s landmark judgment not only confirms that the RCGP’s treatment of the disabled candidate in this case was unlawful, but also that the RCGP’s policy in relation to the Applied Knowledge Test, applying to all disabled candidates, is quashed and must be replaced.’
Professor Banfield also pointed out that the BMA has urged medical royal colleges to implement ‘fair’ exam policies, in line with principles from the Academy of Medical Royal Colleges.
However, according to the BMA, the college ‘continually refused to change its stance’ despite ‘protracted engagement’ by the union.
Professor Banfield added: ‘Whilst today’s judgment is welcome, and will pave the way for disabled trainee GPs to receive much fairer treatment over examinations, it is hugely disappointing that legal action was necessary to achieve this outcome.
‘The College’s intransigence towards change that would promote fairness for disabled trainee GPs in the UK, left us and the candidate in this case with little alternative.’
BMA GP registrars committee chair Dr Malinga Ratwatte said the High Court’s ruling was a ‘huge win’ for trainees.
In a post on X, he said: ‘Proud to have been able to support this legal case which states that the college’s exam attempts policy is unfair to disabled doctors.’
A spokesperson for the RCGP said: ‘We will be considering the finer detail of yesterday’s judgement before deciding on our course of action.’
The college was recently forced to apologise after GP trainees sitting a new component of the MRCGP examinations experienced a ‘temporary outage’ which affected their ability to complete the assessment.
This led to the BMA demanding financial compensation for those GP trainees affected.
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Wow
Time to tackle racism at the RCGP and RCP next.
Yet again the college has been found not to care about its trainees or members. All they appear to want is money. Lots of GPs I know have cancelled their direct debit membership and it has made zero difference to their career progression, any future job prospects or ability to be a trainer . In fact any role what so ever. I wonder it this will help others make that same decision to go on to their online banking app and just press cancel?
Neurodiverse GPs? Marvellous! Wouldn’t want concentration or focus problems to get in the way of a licence to manage life threatening time critical complexity. Bravo!