The High Court ruled that it was irrational and unlawful of the Royal College of GPs (RCGP) to refuse to void failed exam attempts, or grant further attempts by candidates who later discover that they have a disability.

In his judgment, Mr Justice Garnham said the RCGP had “failed entirely” to provide a coherent justification for its attempts policy.   

  

The successful court action was brought by a trainee GP who has asked not to be named, and is referred to here as Y, supported by the BMA.    

  

Represented by Thompsons Solicitors, Y challenged the RCGP’s decision to refuse to grant her a further attempt at the RCGP Applied Knowledge Test (AKT), as well as the lawfulness of the policy generally.  

  

The RCGP policy previously stated that trainees were limited to four (exceptionally, five) attempts at the AKT (this was later changed to six attempts in August 2023). After Y had taken and failed the exam three times, her educational supervisor told her he suspected she may have a neurodiverse condition. She was subsequently diagnosed as having a neurodiverse cognitive profile.  

  

In light of her diagnosis, Y applied for reasonable adjustments for two further attempts and was granted 25% extra time but narrowly missed a pass on both occasions.  

  

She then asked the RCGP to void her three earlier attempts at the exam, taken before her diagnosis, and without the reasonable adjustments that she would have been entitled to, had she known of her disability.  

 

The RCGP refused this request.   

 

On Tuesday 27 August 2024, the Court ruled that the fact that the RCGP will not even consider offering further attempts following a late diagnosis of disability or nullifying previous attempts is irrational.  

  

Mr Justice Garnham held that he could think of 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 it is “not possible” to make equivalent allowance for disabled candidates who discover their disability after failed attempts at the tests.    

  

That different treatment, the Court ruled, is irrational: it is different treatment between classes of disabled people depending simply on when they discover their disability.  

  

The Court quashed the policy (as it relates to the AKT examination), as well as the application of the policy to Y’s case specifically. The Court noted that it would be for the RCGP to consider if, in light of this finding, it wishes to amend the policy as it relates to another of the GP training examinations, the Simulated Consultation Assessment (formerly the Recorded Consultation Assessment).  

 

Rachel Halliday, partner in the Trade Union Law Group at Thompsons Solicitors who acted for Y, welcomed the outcome, saying that the ruling ‘sends a strong message’ about the importance of reasonable adjustments, in creating a level playing field for people with disabilities, and that it ‘highlights the need for public bodies to consider individual circumstances when making important decisions about access to a profession’.  

 

Rachel Halliday, an employment law expert at Thompsons, added:  

 

“If reasonable adjustments are not made, the profession risks unnecessarily losing good candidates. We hope that the RCGP will review all relevant policies in light of this judgment and take steps to ensure that doctors with neuro-diverse conditions will be treated fairly in the assessment process from now on.” 

 

In August 2023, the RCGP also amended its policy so that new trainees entering training for the first time on or after 2 August 2023 would be permitted a maximum of six attempts at each examination.   

  

As well as supporting Y’s case, the BMA had raised similar arguments in a separate judicial review of their own. It was brought alongside Y’s case given the negative impact of the RCGP’s policy on its members with disabilities who have received a late diagnosis.   

  

Although the BMA’s application was refused permission on timing grounds, the BMA is pleased that the arguments it put forward were accepted in the ruling that the RCGP’s policy is unlawful.  

  

The BMA was represented in its judicial review application by Tessa Gregory and Sarah Crowe of law firm Leigh Day.  

  

Sarah Crowe said:  

  

“This judgment will ensure that doctors with disabilities are no longer denied a fair opportunity to sit exams they are required to pass to qualify as GPs.  

  

The Royal College of GPs’ policy effectively penalised doctors who discovered their disability later on, denying them the opportunity to resit exams with the reasonable adjustments they would have been entitled to, had they known of their disability.   

  

We therefore welcome the Court’s ruling that the RCGP’s policy on Applied Knowledge Test attempts as it applies to doctors with disabilities is unjustified and unlawful. We hope that this ruling will enable capable candidates to qualify as GPs and continue to make a valued contribution to our health service.”  

  

The Chair of the BMA Council, Professor Phil Banfield said: 

  

“The BMA is delighted the court has vindicated our efforts to stand up for disabled doctors who have been treated unfairly by the Royal College of GPs. The BMA supported a GP candidate in bringing legal action, challenging the College’s policy of not allowing trainee GPs re-sits or additional exam attempts where they received a late diagnosis of a disability and had failed previous exam attempts without the benefit of reasonable adjustments. The GP candidate has successfully argued that the College was acting unlawfully and putting its disabled trainees at a significant disadvantage. 

  

The 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. The Court ruled that “the College has failed entirely to provide a coherent justification for its policy” and that the legal grounds underpinning the decision are “applicable in principle to the generality of candidates for membership of the College”. This plainly supports the BMA’s long-standing conviction that the RCGP’s relevant policy on exam attempts was unlawful and unfair to disabled trainees.” 

 

Commenting on the outcome of the case Y added:  

 

“I would like to thank the Honourable Mr Justice Garnham for the careful consideration he gave to my case. I would also like to thank the BMA, Thompsons Solicitors, my educational supervisor, my GP team, my family and close friends and colleagues and the well-wishers who supported me through this difficult period in my life. I hope that this judgment will broaden the opportunities for doctors in training like me, who have a delayed diagnosis of neurodivergence, to progress in their chosen career paths.” 

 

Leigh Day instructed Jenni Richards KC and Emily Wilsdon, both of 39 Essex Chambers, on behalf of the BMA. Y was represented by Thompsons Solicitors, also instructing Emily Wilsdon.