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

In professional-disciplinary fact-finding, a tribunal must assess authentic contemporaneous documents and objective facts before placing weight on an honest witness’s confident recollection of distant events. Demeanour is an unreliable guide to accuracy. The regulator retains the burden of proving misconduct on the balance of probabilities.

Procedural fairness requires a party to have a reasonable opportunity to meet a material factual theory on which a tribunal proposes to rely. Under Rule 4(5) of the fitness-to-practise rules, a time bar must be applied to each discrete allegation. Related events cannot be combined into a composite allegation merely because they form part of a course of treatment.

The claimant was a cosmetic surgeon. The General Medical Council referred allegations concerning four patients for investigation. Some allegations concerned treatment in 2009. The Medical Practitioners Tribunal later found several charges proved, held the claimant’s fitness to practise impaired, and imposed a nine-month suspension.

The consolidated proceedings comprised an appeal against the Tribunal’s decision and a judicial review challenge to the GMC Assistant Registrar’s 2016 decision that the five-year rule did not prevent referral of the 2009 allegations. The claimant learned of the five-year decision only shortly before the Tribunal hearing.

The central issues were whether the Tribunal’s findings were flawed or unsafe, whether time should be extended for judicial review, and whether Rule 4(5) permitted the GMC to treat separate allegations as one continuing course of treatment.

1. The appeal was allowed in part and the judicial review claim succeeded. The Tribunal’s findings on the discount charges were procedurally unfair, wrong in principle, and untenable. The other findings of fact, including those concerning consent, were not shown to be wrong on the applicable appellate standard.

2. An appeal under section 40 of the Medical Act 1983 is by way of re-hearing, but it does not ordinarily require the court to hear the evidence afresh. The appellant bears the burden of showing that the Tribunal was wrong or that its decision was unjust through a serious procedural irregularity. Proper weight must be given to the Tribunal’s advantage in seeing and hearing witnesses, but the court may intervene where its conclusion is outside the generous ambit of reasonable disagreement or its reasoning discloses error.

3. The Tribunal had adopted a material factual theory that neither party had advanced: that a discount offer was made on 5 March 2009 but an operation the following week later became unavailable. Fairness required notice of that theory and a reasonable opportunity for both parties to investigate it, adduce evidence, and address it before an adverse finding was made.

4. The Tribunal also erred by beginning with its belief in the patient’s confident recollection of events ten years earlier, and only then asking whether unchallenged contemporaneous documents precluded that account. It should have started with the objective documentary evidence and assessed the oral evidence against it. Its approach also reversed the burden of proof by treating the documents as though they had to conclusively disprove the charge. The GMC had to establish the alleged discount offer on the balance of probabilities.

5. The findings on informed consent were not disturbed. Although the relevant charges were imperfectly drafted, the Tribunal had decided whether consent was obtained, not merely whether it was recorded. In the context of mandatory guidance requiring the key elements of consent discussions to be recorded, the absence of records or a signed form could establish an evidential presumption that proper consent had not been obtained. The Tribunal was entitled to find that the claimant had not rebutted it.

6. Time was extended for judicial review. The claimant had acted with reasonable promptness after receiving the undisclosed five-year decision. It was unjust for the GMC to rely on delay where it had withheld the decision and its reasoning.

7. Rule 4(5) required the Assistant Registrar to assess each discrete allegation by reference to the events giving rise to that allegation. The 2009 allegations could not be rendered timely by treating a distinct 2010 allegation as part of a single composite allegation. The 2014 conversation also did not bring the 2009 allegations to the GMC’s attention as allegations of impaired fitness to practise. The five-year and referral decisions were therefore unlawful as regards the 2009 allegations.

8. The referral of the 2009 allegations, and the consequential impairment and sanction determinations founded substantially upon them, were to be quashed. Impairment and, if necessary, sanction were to be reconsidered by reference to the remaining admitted or proved charges.

This was a consolidated hearing of a statutory appeal from a Medical Practitioners Tribunal and a judicial review claim against the GMC’s referral decision.

• Medical Practitioners Tribunal: found misconduct charges proved, held the claimant’s fitness to practise impaired, and imposed a nine-month suspension.
• High Court (Administrative Court): allowed the appeal only as to the discount charges, quashed the unlawful 2009 referral decision, and indicated that impairment and sanction must be redetermined on the remaining findings.