Gilthorpe v General Medical Council

A statutory appeal against a professional disciplinary decision must be brought in the form required by the applicable procedural rules. A judicial review claim is not a substitute for an appeal under CPR Part 52. Where legislation prescribes a clear and unqualified period for lodging the appeal, the court has no power to extend time unless the statutory scheme permits it. The court may therefore dismiss an out-of-time appeal without considering its merits. The decision also confirms that disciplinary findings and sanctions will stand where the panel was entitled to find dishonesty and imposed a proportionate suspension.

The claimant sought to challenge a Fitness to Practise Panel decision suspending his medical registration for four months under section 35 D(2) of the Medical Act 1983. Notification was served on 11 October 2011, so the statutory 28-day period expired on 8 November. He initially attempted to commence judicial review proceedings and filed a correctly completed Notice of Appeal on 15 November.

The central issues were whether the attempted judicial review proceedings constituted a valid appeal, whether the court had power to extend the statutory time limit, and, if so, whether an extension would be in the interests of justice.

1. The appeal was dismissed. The claimant had not lodged a valid appeal within the statutory period.
2. Under section 40(4) of the Medical Act 1983, an appeal had to be brought within 28 days beginning with service of notification under section 35 E(1). The relevant notification was served on 11 October 2011, making 8 November the final day for lodging the appeal.
3. The only route for challenging the suspension was a statutory appeal under CPR Part 52. Judicial review under CPR Part 54 was not an alternative route. The incomplete judicial review documentation sent before 8 November did not amount to a valid appeal, and the completed claim form was not filed until 9 November.
4. Following R (Dr Harrison) v GMC [2011] EWHC 1741 (Admin), and applying the principles in Mucelli v Government of Albania [2009] 1 WLR 276 and Mitchell v Nursing and Midwifery Council [2009] EWHC 1045 (Admin), the court had no power to extend the statutory time limit. The language of section 40(4) was sufficiently clear, and there were no grounds to depart from the existing line of authority.
5. Although it was unnecessary to determine the merits, the court stated that an extension would not have been granted in any event. The claimant had not provided a satisfactory explanation for the delay. The panel was also entitled to find that receiving fees from two employers for simultaneous working hours without their knowledge was dishonest, and to impose a four-month suspension, particularly in light of admitted false declarations to Barnsley PCT.
6. The GMC was awarded its costs, but recovery was limited to 25 per cent because it had delayed until January 2012 before applying to dismiss the plainly out-of-time appeal.

• GMC Fitness to Practise Panel: on 11 October 2011 directed the claimant’s registration to be suspended for four months.
• High Court (Administrative Court): dismissed the statutory appeal as out of time and held that the court had no power to extend the time limit.