LAW REPORT: Doctor cannot claim racial discrimination against PPP

LAW REPORT v 11 July 1997: Tattari v Private Patients Plan Ltd; Court of Appeal (Lord Justice Beldam, Lord Justice Roch and Sir John Balcombe) 8 July 1997

The refusal of a medical insurance company to place a doctor on its list of specialists because it did not recognise her EEC certificate of specialist training was not discrimination contrary to the Race Relations Act 1976, since the company was not an authority or body which could confer an authorisation or qualification which was needed for or facilitated engagement in the practice of a profession within the meaning of section 12 of the Act.

The Court of Appeal dismissed the appellant's appeal against the decision of the Employment Appeal Tribunal, which had declined to entertain her claim that Private Patients Plan Ltd ("PPP") had discriminated against her on grounds of race.

Christopher Jeans QC (Principal Solicitor, British Medical Association) for the appellant; Nicholas Green (Lawrence Graham) for the respondent.

Lord Justice Beldam said that the appellant was a registered medical practitioner. She was a British citizen but was Greek by birth. She had qualified as a doctor at Athens University and had held a number of hospital posts as a surgeon in the United Kingdom. In 1979 she had been admitted a Fellow of the Royal College of Surgeons. She had been granted a Specialist Certificate (EEC) in plastic and reconstructive surgery by Athens University in 1986. Since 1988 she had been in private practice as a plastic surgeon in London.

The General Medical Council maintained a specialist list in accordance with Article 6 of the Medical Qualifications (EEC Recognition) Order 1977, and the appellant was recognised by it as having the right to practise plastic surgery in this country.

PPP issued insurance policies undertaking to indemnify policyholders for the cost of medical care and specialist treatment. A specialist was defined in PPP's policies as a registered medical practitioner who had either held a post as consultant in an NHS hospital, or had a certificate of higher specialist training from the appropriate Royal College or Faculty.

The appellant had applied to be added to PPP's list of specialists, but PPP had told her that it could not grant her specialist recognition since it did not recognise any EEC certificate of higher specialist training. She had complained to the Industrial Tribunal, stating that she believed she had been discriminated against on grounds of her nationality contrary to section 1(1)(b) of the Race Relations Act 1976.

Before the Industrial Tribunal and the Employment Appeal Tribunal it had been argued on the appellant's behalf that PPP was an authority or body to which the provisions of section 12 of the 1976 Act applied, but both tribunals had rejected that argument.

The appellant contended that section 12 should be given a wide interpretation, relying on British Judo Association v Petty [1981] ICR 660. Where the GMC had complied with Article 6 Directive 93/16 of the EC by placing her on its specialist list, a private body could not, in effect, block access to a substantial part of the market by refusing recognition. The word "body" should be given a broad interpretation and should not be confined to "non-commercial bodies".

PPP argued that it was not a body which could confer recognition, authorisation or approval to practise the profession of medicine, nor was it a body whose approval was necessary to facilitate the practice of the profession. It was entitled to agree with its policyholders the qualifications which were appropriate for the treatment provided under the terms of the policy.

Section 12 had to be read as a whole and not piecemeal. The kind of bodies to which it referred were those similar to authorities which were empowered to grant qualifications or recognition for the purpose of practising a profession, calling, trade or activity.

Section 12, referring as it did to an authority which conferred recognition or approval, referred to a body which had the power or authority to confer on a person a professional qualification or other approval needed to enable him to practise a profession, exercise a calling or take part in some other activity. It did not refer to a body which was not so authorised or empowered, but which stipulated that for the purpose of its commercial agreements a particular qualification was required. The appeal was accordingly dismissed.

Kate O'Hanlon, Barrister