R (on the application of Dr Anup Chaudhuri v the General Medical Council [2015] EWCA 6621 (Admin)

Background

The Claimant, Dr Chaudhuri, a general practitioner (‘Dr C’), applied for Judicial Review of the GMC’s decision pursuant to Rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004 (‘the 5 year rule’), which is set out below:

“No allegation shall proceed further, if at the time it is first made or first comes to the attention of the General Council, more than five-years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for it to proceed.”

On 26 July 2013, the GMC received a complaint relating to Dr C and his treatment of Patient A in April, June and August 2008.  The complaint related to the fact that patient A had a large neck lump and Dr C prescribed antibiotics.  Patient A subsequently visited a locum GP with the neck lump who urgently referred to an ENT consultant and stage 2 tongue cancer was diagnosed.  The complaint was made by a relative of patient A, who had incorrectly noted the dates of the appointments with Dr C as:  April, June and August 2008, which were within the GMC’s 5 year rule.  On 30 July 2013, an assistant registrar at the GMC considered the complaint under Rule 4, and concluded on the April – August 2008 allegation dates, that the 5 year rule was not engaged and the complaint should proceed.  On 10 October 2013, the GMC received copies of Patient A’s medical records, which actually showed the last consultation had in fact been on 22 May 2008, and was therefore over 5 years’ old before the index complaint was lodged.

On 1 September 2014, Dr C’s solicitors wrote to the GMC highlighting the initial error made by the complainant, that the medical records revealed the correct picture and that this was now outside the GMC’s 5 year rule.  On 21 October and 18 December 2014, the GMC confirmed that they were not prepared to review their decision, as at the time of the decision on 26 July 2013, the complaint was in relation to an attendance in August 2008, and this was within the 5 year rule.

The Judicial Review Hearing

The 5 year Rule

The GMC argued that “the most recent events” pursuant to Rule 4(5) referred to the alleged events and this did not give rise to an issue of precedent or jurisdictional fact. Dr C’s counsel contended that the meaning of “the most recent events” related to actual events and was an issue of precedent or jurisdictional fact.  Haddon-Cave J, confirmed at paragraph 37 that:

The date upon which an event or an alleged event took place (as opposed to the event itself) is an objectively verifiable fact.”  He confirms that the 5 year rule is a factual question with only a binary answer, and the second half of Rule 4(5) allows the regulator to exercise a value judgement in relation to the public interest test (however this was not engaged in this case). 

At paragraph 38 Haddon-Cave J confirms that Rule 4(5) raises an objective question of precedent or jurisdictional fact.

Refusal of GMC to reconsider decision

Haddon-Cave J, confirms the position of a public body and their ability to correct errors, confirming the analysis and decision of Keith J in Fajemisin v GMC [2013] EWHC 3501 (Admin), who followed the Divisional Court inPorteous v. Wess Dorset District Council [2004] EWCA Civ 244.  At paragraph 46, Haddon-Cave J makes it clear that a public body has an inherent power to correct decisions not limited to correcting slips or minor errors which do not affect the rights of the parties or the decision taken; on the contrary, public bodies have the inherent or implied power themselves to revisit and revokeany decision based upon a fundamental mistake as to the underlying facts upon which the decision in question was predicated upon.   

The above 2 grounds were successful, and the original decisions quashed and remitted back to the GMC.  Haddon-Cave J concludes at paragraph 69 that:

“There was an error in the complaint lodged on behalf of patient A, namely that he had last been treated in August 2008 rather than May 2008.  This was a fundamental and material error of fact.  As a result of this error of fact, the Registrant fell into error in deciding that the five year rule did not apply.   Further, when the error was pointed out, the GMC should have corrected its original decision but refused to do so.”

This case confirms a common sense approach should be adopted by regulators, when correcting decisions based upon a fundamental mistake or fact, as Haddon-Cave J sets out at paragraph 47:  “To suggest otherwise would be to allow process to triumph over common sense.”  It reconfirms earlier decisions of Fajemisin and Porteous and provides clarity to public bodies that where any decision made in error by a regulator was made based upon a fundamental mistake or fact, the regulator has an inherent power to correct such mistakes.  A pragmatic common sense approach should be adopted in such circumstances by public bodies.

Haddon-Cave J under his general observations at paragraph 63 onwards, emphasises the role of the regulator, and how regulatory proceedings should be run.  “The GMC appear to have a misplaced anxiety that the integrity and smooth running of the FTP disciplinary proceedings would be undermined if any of the Grounds were to succeed.  Properly understood, however, the FTP procedure is robust, flexible and fair.  As I have explained above, the position is straightforward: the Registrar is entitled to rely on the complaint as prima facie evidence upon which to make the Rule 4 decisions; but the Registrar has the power to correct fundamental mistakes of fact at any time.”  Haddon-Cave J, emphasises the expectation upon regulators that FTP procedure is robust, flexible and fair, and the regulator can achieve this in a common sense way, without the need for judicial intervention when a decision has clearly been made on an incorrect basis.