Dr Karmakar took the Royal College of General Practitioners to the High Court when it refused to allow her to retake a test by way of a reasonable adjustment.
Dr Karmakar was a trainee GP. She took the Applied Knowledge Test (AKT), required by the Royal College of GPs (RCGP) to become a GP, three times. She failed each attempt. She was later diagnosed with a neurodiverse cognitive profile. For her fourth attempt at the AKT, she applied for a reasonable adjustment that she be given 25% extra time for the exam. This reasonable adjustment was granted. While her score did improve, she failed again.
RCGP only permits four attempts at the AKT. However, it did allow Dr Karmakar an exceptional fifth attempt. She failed again by a narrow margin (6.5%). Dr Karmakar wanted to be allowed a further attempt to take the AKT; she wanted to fulfil her goal of becoming a GP. Dr Karmakar requested that her first three attempts at the AKT, where she had not had the reasonable adjustment of extra time, be voided. This would mean that these would not count towards the four attempts she was permitted to take the AKT. The RCGP refused.
Dr Karmakar applied for judicial review of the RCGP’s decision arguing that RCGP’s decision amounted to an unlawful fettering of its discretion, that their decision was irrational, amounted to indirect disability discrimination, and was in breach of their duty to make reasonable adjustments to their procedures to accommodate her disability under the Equality Act 2010.
Unlawful fettering of discretion in law refers to a situation where rather than exercising its discretion to decide the individual matter before it, the public body binds itself to a policy. Here the RCGP said it could not exercise its discretion outside its existing policy. The High Court held that the RCGP had a non-statutory discretion and it was open to the RCGP to decide if there should be no exceptions to its criteria, but their decision should be subject to rationality and the provisions of the Equality Act 2010.
The High Court then went to determine that the RCGP had failed to provide a coherent justification for its policy never to make reasonable adjustments for a disabled trainee who receives a late diagnosis. It was irrational to give candidates who knew of their disability extra time for several attempts at the tests, but not to offer the same to those who discovered a disability later. The court quashed the RCGP’s decision on this basis.
The High Court found however that there had been no breach of the Equality Act 2010. There was no failure to make reasonable adjustments and no indirect discrimination, because the policy was not capable of being applied to both disabled and non-disabled applicants as only a disabled person could apply for reasonable adjustments.
The judgment can be found here.
This blog was written by Anita Vadgama, Partner at didlaw.
