Technical

Education | The value of procedures and complying with them

Published: 28th July 2020
Area: Corporate & Commercial

Education | The value of procedures and complying with them

A medical student was successful in her recent claim for judicial review of a university’s decision to terminate her registration, resulting in the court quashing the decision [R (on the application of AW) v St George’s, University of London [2020] EWHC 1647 (Admin)].

The case reinforces the obvious but often-neglected duty to comply with an institution’s published policies. It also emphasises the point that, given the seriousness of a decision to terminate registration, a student should expect a case to be made out against them and to be afforded an opportunity to reply.

Background of the case 

AW, a medical student, commenced a medical degree in 2012.  She was diagnosed with cancer in July 2015.  She narrowly failed both the 2015 examinations and the re-sits, and interrupted her studies in March 2016 in order to undergo medical treatment in France. Her return was conditional on undergoing an occupational health (OH) report to confirm her fitness to resume her studies and to clarify any adjustments that would be needed in respect of her disability.  OH reports provided in 2017 stated that AW was fit to return but did not contain medical details or information about adjustments.

As AW had missed more than six weeks of clinical experience (the limit is four weeks) it was not possible to remediate the lost time in the current academic year (2017/18). On 17 July 2018, the Registration Extension Panel (ERP) extended her period of interruption for another year and her expected return date was 25 February 2019.  AW’s period of registration was also extended and the ERP recommended that she should undergo an OH assessment prior to her return and disclose the report to the Head of MBBS Clinical Administration and to any staff responsible for implementing reasonable adjustments. AW appealed unsuccessfully against the decision.

AW received a warning on 22 February 2019 that, by failing to attend OH before her return, she would disqualify herself from returning and she would be ineligible to undertake the third year examinations later that year.  That in turn would render her unable to complete her medical degree within the maximum period of registration. She was exhorted to attend OH accordingly. In reply, AW provided a copy of a letter she had previously sent to the university on 19 February 2019 complaining, amongst other things, about the decision to require an OH report and that it be disclosed to the staff.

The university wrote to AW on 3 April 2019 terminating her registration, citing two reasons:

1. AW’s failure to attend a scheduled OH appointment and hence to fulfil the requirement to confirm her fitness to return to study; and

2. AW’s failure to attend her first placement following her expected return date and to complete the enrolment process.

The letter invoked regulations affording the university a discretion to terminate the registration of students who do not maintain contact by completing normal formalities and/or responding to correspondence, following repeated and extensive reminders.

The university also subsequently indicated that it was not prepared to consider a complaint from AW regarding the decision, on the basis that her previous appeal against the ERP’s recommendations, which AW maintained had prevented her from returning at an appropriate time and resulted in her registration being terminated, was not upheld. The university contended that the complaints procedure could not be used to appeal against the outcome of an appeal made under another procedure and refused to issue a Completion of Procedures letter (COP).

The challenge

AW sought judicial review of the university’s decision, on the grounds that it was unlawful in particular because it afforded AW no right to make representations and provided no system for review.  The judge agreed.

Further, it was not enough for the university simply to state that AW was expected to return to study by a specific date and expected or recommended to attend an OH referral.  The university should also have made clear to her the consequences of failing to do so i.e. termination of registration.

The university’s complaints procedure excluded appeals against a decision taken by a university committee under a formal stage of another procedure (e.g. the FTP committee or ERP). The judge also concluded that that the university was wrong to consider that a complaint about AW’s termination would have been a de facto appeal against the outcome of the appeal against the ERP’s recommendations.

A finding that the ERP’s recommendations were reasonable did not lead to a finding that the registrar was entitled to terminate registration for failure to follow those recommendations.  The registrar’s decision was a separate matter made by an individual and not part of a separate formal procedure.  It therefore fell within the ambit of the complaints procedure and entitled AW to a COP.  The judge also appeared to accept AW’s proposition that the FTP committee was, under the university’s regulations, the appropriate means for considering whether her registration should be terminated.

Top five lessons that can be learned from this case

  1. Termination of a student’s registration is always very serious matter. Even if there is a discretion under an institution’s regulations to terminate registration outside of the formal procedures, that discretion should never be exercised without some form of procedure that affords an opportunity to the student to make representations. Those representations should be taken into account before the decision is made.
  2. Always provide warnings of the consequences for a student of failing to comply with recommendations or conditions, particularly where those consequences are serious.
  3. As a matter of public law, institutions must act consistently with their published procedures and students have a legitimate expectation that they will do so. A decision made outside of those procedures is vulnerable to successful challenge.
  4. Institutions’ regulations and policies form part of the contractual relationship with the student and should be complied with as a matter of contract law.
  5. Termination of registration should always be governed by clear regulations and procedures as a matter of fairness.

Contact us
If you have any queries regarding the issues raised in the above case then contact Geraldine Swanton in our specialist education team.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

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