Dutta, R (On the Application Of) v General Medical Council (GMC)

Medical disciplinary fact-finding should test recollection against authentic contemporaneous documents, independently established facts and probabilities. Confidence and apparent honesty are unreliable guides to accuracy, especially where events are remote. A tribunal considering a substantial new factual theory must give the parties a reasonable opportunity to address it. Missing consent records do not automatically establish absence of consent, but may support an evidential presumption in the circumstances. Appellate intervention remains available where findings cannot be justified by the tribunal’s advantages in hearing witnesses. The five-year limit on investigating medical misconduct applies to each discrete allegation. Later events within the same course of treatment do not automatically bring earlier allegations within time. Non-disclosure of a regulatory decision may justify extending time for judicial review where proceedings follow with reasonable promptness once sufficient information becomes available.

Dr Ashish Dutta, a cosmetic surgeon, faced allegations investigated by the General Medical Council concerning four patients. Some concerned breast augmentation surgery performed on Patient A in 2009. An Assistant Registrar referred those allegations for investigation in 2016, treating later treatment in 2010 as part of a composite allegation and a police conversation in 2014 as the first notification.

Following a hearing in 2019, a Medical Practitioners Tribunal found several allegations proved, determined that Dr Dutta’s fitness to practise was impaired and suspended his registration for nine months. Dr Dutta appealed under section 40 of the Medical Act 1983, challenging the factual findings. He also sought judicial review of the referral of the 2009 allegations, requiring an extension of time.

The proceedings were heard together. The issues were whether the tribunal’s factual findings warranted appellate intervention, whether the referral complied with the five-year rule, and whether the delayed judicial review claim should proceed.

1. The appeal was allowed in part and the judicial review claim succeeded. The findings on the discount allegations were procedurally flawed and untenable. The remaining appellate challenges failed. Time for judicial review was extended and permission granted. The five-year decision and the referral decision concerning the 2009 allegations had to be quashed.

2. An appeal under section 40 of the Medical Act 1983 was a rehearing, but ordinarily involved neither starting afresh nor rehearing witnesses. The appellant had to establish that the decision was wrong or unjust. The tribunal’s advantages in hearing witnesses required appropriate weight, but credibility findings attracted no additional immunity from review. Deference concerning professional misconduct and sanction did not govern these factual disputes.

3. A tribunal could explore hypotheses beyond the parties’ cases. Before deciding a substantial factual point on a new theory, however, fairness required disclosure and a reasonable opportunity to investigate, produce evidence and make submissions. The tribunal’s alternative account of when the discount was offered had never been put to either party.

4. Fact-finding should begin with authentic contemporaneous documents and independent facts, then test recollection against them. The approach in Kimathi v Foreign and Commonwealth Office, [2018] EWHC 2066 (QB), was applied. Confident demeanour and honest recollection could not establish accuracy. The tribunal also wrongly required the documents conclusively to exclude its hypothesis, rather than asking whether the regulator had proved its allegations on the balance of probabilities. The evidence could not sustain the discount allegations, and they should not be reheard.

5. Failure to record consent was distinct from failure to obtain it. Nevertheless, mandatory recording guidance, absent documentation and a pattern of poor compliance could establish a prima facie case that consent had not been obtained. General assurances could be insufficient to rebut that inference. The tribunal’s consent findings were open to it, and the error on the discount allegations did not automatically invalidate its other findings.

6. The power to refuse judicial review for undue delay under section 31(6) of the Senior Courts Act 1981 was discretionary. Time could be extended despite undue delay. The claim followed with reasonable promptness once the referral decision supplied sufficient information. Given the regulator’s late disclosure and the imminent disciplinary hearing, proceeding with that hearing before pursuing judicial review was reasonable.

7. Rule 4(5) of the General Medical Council (Fitness to Practise) Rules Order of Council 2004 applied to each discrete allegation. A common course of treatment did not make distinct complaints a composite allegation. Events following the 2010 scan did not give rise to the earlier allegations. The 2014 conversation also failed to identify the relevant allegations. Exceptional circumstances were not in issue.

8. The impairment and sanction determinations required fresh consideration because the excluded allegations had materially influenced them. The case was to be remitted for reconsideration on the remaining admitted or proved charges. The final form of order was reserved for submissions.

1. High Court (Administrative Court): In the consolidated proceedings, the appeal succeeded on the discount allegations but otherwise failed. Judicial review succeeded against the referral of all 2009 allegations. Impairment and sanction required reconsideration on the remaining admitted or proved charges.
2. Medical Practitioners Tribunal: On 13 November 2019, the tribunal determined the disputed facts. On 18 November 2019, it found impaired fitness to practise. On 20 November 2019, it imposed a nine-month suspension, which was suspended pending these proceedings.
3. GMC Assistant Registrar: On 18 August 2016, the Assistant Registrar referred allegations for investigation and decided that the five-year rule did not bar the 2009 allegations. That decision was challenged by judicial review alongside the statutory appeal.