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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Dutta, R (On the Application Of) v General Medical Council (GMC) [2020] EWHC 1974 (Admin) (22 July 2020) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2020/1974.html Cite as: [2020] EWHC 1974 (Admin), [2020] ACD 112, [2020] Med LR 426 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
LEEDS DISTRICT REGISTRY
Royal Courts of Justice, Strand, London WC2A 2LL |
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B e f o r e :
____________________
| The Queen on the application of Dr Ashish  Dutta | Claimant/ Appellant |
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- and |
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| General Medical Council | Defendant/ Respondent |
____________________
Alexis Hearnden (instructed by GMC UK) for the Defendant/Respondent
Hearing dates: 10-11 June 2020
____________________
Crown Copyright ©
Mr Justice Warby:
Dutta ("Dr Dutta") against the General Medical Council ("GMC") in respect of a decision of August 2016, to refer certain allegations for investigation; and (2) an appeal by Dr Dutta ("the Appeal") against a decision to suspend him from practice made by a Medical Practitioners Tribunal ("Tribunal") after a hearing in 2019. The GMC is the respondent to the Appeal.
Dutta trained and qualified as a cosmetic surgeon. At the relevant times he was practising as such, and he still is practising, at clinics in Newcastle, Sunderland and London.
Dutta was guilty of misconduct in his professional dealings with four patients, between 2009 and 2015. On 11 April 2009, he performed a breast augmentation operation on a woman referred to as "Patient A" ("the Augmentation Operation"). There was a follow up scan in August 2010. Patient A was then referred to another surgeon, "Dr B", who carried out two further operations on her. In 2014, Patient A complained to Dr Dutta about Dr B, alleging that he had indecently assaulted her. In 2015, Dr Dutta performed a series of seven procedures on "Patient C", two gynaecomastia procedures on "Patient D", and one operation on "Patient E".
medical practitioners, with the over-arching objective of protecting the public. Its functions and powers are defined and governed, so far as relevant, by the Medical Act 1983 ("the Act") sections 1 and 35C, and by the General Medical Council (Fitness to Practise) Rules Order of Council 2004 ("the Rules").
(1) If an allegation is made to the GMC that a registered practitioner's fitness is impaired by reason of misconduct it is investigated. The process is governed by Part 2 of the Rules.
(2) The initial stage is consideration by the Registrar, who determines whether the allegation is one of misconduct within the meaning of s 35C(2) of the Act. In order to make that determination, the Registrar may carry out investigations. If the Registrar considers that the allegation does fall within s 35C(2) then, subject to some exceptions, the allegation must be referred for investigation. The exception relevant to this case is a time-bar, commonly known as the "5-year rule", contained in Rule 4(5).
(3) If an allegation is referred, the Registrar must write to the practitioner, giving notice of the allegation and giving him an opportunity to respond.
(4) The allegation is then considered by Case Examiners. They may refer the case to the GMC's Medical Practitioners Tribunal Service ("MPTS"), or to the GMC's Investigation Committee, which may itself refer the allegation to the MPTS. The MPTS then puts the matter before a Tribunal.
(5) The procedure before the Tribunal is governed by Part 4 of the Rules. The standard of proof is the ordinary civil standard.
(1) In September 2014, there was a conversation between a police officer and a GMC official ("the 2014 Conversation"). The police had spoken to Patient A in the context of an investigation into the conduct of Dr B. They told the GMC of some things that Patient A had said about Dr Dutta.
(2) In November 2015, the GMC opened an internal investigation into Dr Dutta's fitness to practise. This followed a referral from an inspector of the Care Quality Commission ("CQC"), which reported concerns about Dr Dutta's conduct towards and/or record-keeping in respect of Patients C, D and E.
(3) On 16 November 2015, Patient A made a witness statement ("the 2015 Statement"). This was in connection with a Fitness to Practise process relating to Dr B, but the statement made reference to Dr Dutta. He was not accused of any improper assault, but the patient made a number of allegations about Dr Dutta's qualifications, his medical treatment of Patient A, and his response to her complaints about the behaviour of Dr B.
(4) Some of these allegations related to events in 2009 ("the 2009 Allegations"). In summary, they were a failure to provide appropriate advice prior to the Augmentation Operation; offering a financial incentive to have that operation swiftly; mishandling the operation; and then telling her there was nothing wrong. There was also an allegation ("the 2010 Allegation") that, when the 2010 Scan was carried out, Dr Dutta falsely reported that it showed nothing wrong, even though the radiologist told her that both breasts were full of infected fluids and the implants needed immediate removal.
(5) In June 2016, an internal triage request was made, to enable the GMC to consider Patient A's allegations about Dr Dutta. The request was evidently granted.
(6) On 18 August 2016, an Assistant Registrar of the GMC ("AR"), acting under delegated powers, reviewed allegations about Dr Dutta's conduct in respect of Patients A, C, D and E, and made a decision under Rule 4 on whether to refer all or any of them for investigation. The decision ("the Referral Decision") was to refer all but one of them. In the process, a decision had to be made as to whether the 5-year rule applied to the 2009 Allegations ("the Five-Year Decision"). Having taken legal advice, the AR proceeded on the footing that the 5-year rule was not engaged. As will be seen, this was essentially on the basis that the 2010 Scan was part of the same course of treatment as the Augmentation Operation, and the 2014 Conversation was within 5 years of that.
(7) On 24 November 2016, Dr Dutta was notified of the Referral Decision, and sent a copy of the 2015 Statement. Dr Dutta was not told of the 2014 Conversation, nor of the Five-Year Decision. The Rules do not require the Registrar to notify the practitioner of such a decision, unless it is to the effect that the 5-year rule does apply, so that allegations should not go forward for investigation. An investigation ensued.
(8) On 8 February 2019, the Case Examiners completed a report setting out their reasons for deciding to refer Dr Dutta's case to the MPTS. The Case Examiners referred the 2009 Allegations. But they did not refer the 2010 Allegation. They had consulted an expert. He had examined the ultrasound report from the 2010 Scan, which provided no support for that allegation. The expert described Dr Dutta's care at that stage as "adequate and appropriate".
(9) On 15 February 2019, Dr Dutta was told of the Case Examiners' decision. This was done by letter which enclosed the Case Examiners' report and an Annex A, setting out 23 allegations of misconduct. The case that was, in due course, put before the Tribunal was in substantially the same terms as Annex A. Dr Dutta was not told at this stage about the Five-Year Decision or the 2014 Conversation.
(10) On 12 September 2019, after his solicitors had made enquiries, Dr Dutta was told about the Five-Year Decision and the 2014 Conversation. The written decision itself was disclosed on Wednesday 23 October 2019. That was 2 working days before the Tribunal hearing was due to start.
(11) Dr Dutta threatened to apply to the Tribunal to strike out the 2009 Allegations on the grounds of a breach of Rule 4(5). The GMC responded by pointing to the decision of this Court in R (Lee) v General Medical Council [2015] EWHC 135 (Admin) [2016] 4 WLR 34 (Haddon-Cave J), that only the Registrar has jurisdiction to make a decision on the 5-year rule. Dr Dutta's legal team did not pursue the application to strike out, nor did they apply to adjourn to enable them to challenge the Five-Year Decision by way of judicial review.
(1) Eight of the charges related to Patient A. Charges 1 to 6 reflected the 2009 Allegations. Charges 7 and 8 related to events on and after 14 July 2014.
(2) Eight charges (nos. 9-16) related to the procedures carried out on Patient C, and the alleged failures of recording in respect of those procedures.
(3) Two charges (nos. 17 & 18) related to Patient D, consisting of failures to make records in respect of the two procedures of 2015.
(4) Four charges (nos. 19-22) related to Patient E.
(5) One charge (no. 23) alleged that Dr Dutta carried out the procedures on Patients C, D and E in a room which was inadequate in various respects.
Dutta had made admissions in relation to some of the allegations, some had been withdrawn, and others were dismissed after a successful submission of no case to answer. The matters that remained for decision were, in summary:-
(1) Whether, in 2009, Dr Dutta:
a. inappropriately pressurised Patient A to undergo breast augmentation surgery by offering her a discount, for financial motives [Charges 1(a) and 2] ("the Discount Charges");
b. failed to obtain adequate informed consent to the surgery [Charge 3(a)]; and
c. falsely told Patient A that he would not be using PIP implants during the surgery, or words to that effect [Charges 3(b), 4 and 5].
(2) Whether, in 2014, Dr Dutta:
a. failed to refer Patient A to a surgeon other than Dr B, having been told that she did not trust Dr B and that he had touched her in various inappropriate ways [Charge 7]; and
b. failed to take appropriate action in relation to Dr B's reported behaviour, by using inappropriate language to Patient A, speaking to another individual on the phone and laughing about the matter [Charges 8(a) to (c)], and failing to report Dr B for investigation [Charge 8(d)].
(3) Whether, in 2015, Dr Dutta failed to obtain and record adequate consent and maintain adequate records of the treatment of Patients C, D and E as set out in the allegations (various).
Dutta's fitness to practise was impaired. In a Determination on Sanction (Stage 3) dated 20 November 2019, the Tribunal imposed a suspension of Dr Dutta's registration under s 35D of the Act, for a period of 9 months. That sanction is itself suspended pending the outcome of this hearing.
Dutta issued proceedings in the Claim. The Claim alleges that the Five-Year Decision was wrong, so that the Referral Decision was wrong, in so far as it relates to the 2009 Allegations. The GMC maintains that the Claim lacks arguable merit, and in any event as is common ground it is brought out of time. A judicial review claim must of course be brought promptly and in any event within three months of the decision complained of.
Dutta made an application for an extension of time for bringing the Claim, relying on CPR 3.1(2)(a) ("the Extension Application"). The issues for determination in the Claim are whether the Extension Application should be granted; if so, whether the application for permission ("the Permission Application") should be granted; and if so, whether the Claim should be upheld to any extent.
Dutta filed an Appellant's Notice against the Tribunal's direction for suspension. His grounds of appeal contend that the Determination on the Facts was wrong, and so (consequentially) were the Determination on Impairment and the Determination on Sanction. Dr Dutta challenges all the findings against him in the Determination on the Facts, save those which reflect admissions by him.
(1) The Tribunal erred in finding the Discount Charges proved: those findings are procedurally flawed and untenable. The Appeal succeeds to that extent. Dr Dutta has not established that, applying the appropriate standard of appellate review, the Court should interfere with any of the Tribunal's other findings.
(2) But none of the 2009 Allegations should have been before the Tribunal. It is just to grant the Extension Application. The Permission Application is granted. Upon review, Dr Dutta's case is upheld: the Five-Year Decision was unlawful and so was the Referral Decision, insofar as it relates to the 2009 Allegations.
The nature of the appeal
general rule in CPR 52.21(1) that "every appeal will be limited to a review of the decision of the lower court"). The Court can allow an appeal where the Tribunal's decision was "(a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court": r 52.21(3).
(1) The appeal is not a re-hearing in the sense that the appeal court starts afresh, without regard to what has gone before, or (save in exceptional circumstances) that it re-hears the evidence that was before the Tribunal. "Re-hearing" is an elastic notion, but generally indicates a more intensive process than a review: E I Dupont de Nemours & Co v S T Dupont (Note) [2006] 1 WLR 2793 [92-98]. The test is not the "Wednesbury" test.
(2) That said, the appellant has the burden of showing that the Tribunal's decision is wrong or unjust: Yassin [32(i)]. The Court will have regard to the decision of the lower court and give it "the weight that it deserves": Meadow [128] (Auld LJ, citing Dupont [96] (May LJ)).
(3) A court asked to interfere with findings of fact made by a lower court or Tribunal may only do so in limited circumstances. Although this Court has the same documents as the Tribunal, the oral evidence is before this Court in the form of transcripts, rather than live evidence. The appeal Court must bear in mind the advantages which the Tribunal has of hearing and seeing the witnesses, and should be slow to interfere. See Gupta [10], Casey [6(a)], Yassin [32(iii)].
(4) Where there is no question of a misdirection, an appellate court should not come to a different conclusion from the tribunal of fact unless it is satisfied that any advantage enjoyed by the lower court or tribunal by reason of seeing and hearing the witnesses could not be sufficient to explain or justify its conclusions: Casey [6(a)].
(5) In this context, the test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Yassin [32(v)].
(6) The appeal Court should only draw an inference which differs from that of the Tribunal, or interfere with a finding of secondary fact, if there are objective grounds to justify this: Yassin [32(vii)].
(7) But the appeal Court will not defer to the judgment of the tribunal of fact more than is warranted by the circumstances; it may be satisfied that the tribunal has not taken proper advantage of the benefits it has, either because reasons given are not satisfactory, or because it unmistakably so appears from the evidence: Casey [6(a)] and cases there cited, which include Raschid and Gupta (above) and Meadow [125-126], [197] (Auld LJ). Another way of putting the matter is that the appeal Court may interfere if the finding of fact is "so out of tune with the evidence properly read as to be unreasonable": Casey [6(c)], citing Southall [47] (Leveson LJ).
" it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable."
However, it is clear from paragraph [47] read as a whole, that this sentence does not purport to represent a distinct principle, imposing a more exacting test than those I have identified. Rather, it is intended to be a distillation of the jurisprudence I have summarised. Southall [47] also shows that the passage I have quoted from Casey [6(c)] reflects high authority. It is a variation of words used by Lord Hailsham, sitting in in the Privy Council, in Libman v General Medical Council [1972] AC 217, 221F.
The grounds of appeal
(1) The Tribunal's conclusion that the Discount Charges were made out was procedurally flawed and/or wrong, because the Tribunal made errors of principle in its approach, reached findings of fact that were not open to it as a matter of principle, and (in any event) the only conclusion that any reasonable Tribunal could have reached on the evidence was that Patient A's recollection, that she was offered a discount if she agreed to undergo the procedure the following week, was wrong.
(2) The Tribunal's findings that Charges 3(a), 11(b), 12(b) and 13(b) ("the Consent Charges") were made out was contrary to the evidence, irrational and/or plainly wrong.
(3) Further and alternatively, the Tribunal's approach to the Discount Charges is so fundamentally flawed as to taint all its other findings of fact against Dr Dutta. For that reason, and for a number of supplemental reasons relating to Charges 3(a) and 8, all those other findings are unsafe and should be quashed.
Assessment
The Discount Charges
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1 |
In March 2009, during a consultation, you inappropriately pressurised Patient A to undergo breast augmentation surgery (`the surgery') in that you: (a) offered a discount of £600 if Patient A agreed to undergo the surgery the following week. |
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2 |
Your conduct as set out at paragraph 1(a) ... above was financially motivated. |
Dutta in March 2009, he "said that if I agreed to have the surgery the following week he would be able to give me a £600 discount as he was already operating on someone else that week and I wouldn't have to pay theatre fees if I had the operation on the same day as them. I agreed to have the operation the following week". Her account was that he made the offer on the stairwell of the clinic. She said that, looking back, she realised that she had been pressurised into agreeing and felt he had done a "hard sell" on her. There was then a pre-op clinic on 2 April 2009. She transferred the money for the operation to the clinic that day. The operation was then scheduled to take place on 4 April but, the day after the pre-op, she was telephoned by the receptionist to be told that the operation had had to be moved. It was then "rescheduled for 11 April 2009", which is when it took place. This was, she told the Panel, within "a couple of weeks" of the stairwell discount offer. On this account, therefore, that offer must have been made in late March 2009. Her oral evidence was that it was in the middle or at the end of March, "a couple of weeks before the operation".
Dutta, having consulted his records from 10 years earlier, said that Patient A had been considering breast augmentation for some time. On an occasion in the latter months of 2008, when she was coming in for injectable treatments, he had outlined the costs to the patient and arranged to see her again to discuss the matter further, allowing a cooling off period. He next saw her on 5 March 2009. They had a discussion about the operation before arranging the pre-op consultation for 2 April, and the operation six weeks after 5 March. She was quoted the standard price and paid a deposit of £500. He did not pressurise Patient A into agreeing to the operation only a week after it was first discussed, or offer her a discount for that purpose. An appointment the following week could not have been arranged. He did not see her again until the pre-op consultation on 2 April. In due course, she paid the standard price.
Dutta relied in support of his account. In particular:-
(1) There was an appointment print-out, listing dates on which Patient A attended the practice, the duration of the appointment, and in most instances the reason for her attendance. The print-out included a 30-minute appointment on 5 March 2009 for "treatment", a 15-minute appointment on 2 April 2009 for unspecified reasons, and an appointment on 11 April 2009 when, by common consent, the Augmentation Operation took place. The print-out did not include any late March visit.
(2) There was a printed booking form for 5 March 2009, filled out in manuscript, with extensive annotations. In two places it recorded that Dr Dutta had quoted £3,000 in total for breast augmentation. It said that £500 had been "paid on 5/3/09" and that a receipt for that sum had been provided in person on the same date. These entries were signed by "LINDA". The form dealt with the booking process for the procedure, recording "emailed Hugh 5/3/09". It set out the Schedule of treatment as "Pre-op Thursday 2nd April '09 at 1:30pm" and "Date of procedure Saturday 11th April '09 at 11:00". There was also a manuscript annotation against "Balance due" which was evidently filled in later, stating "2,500 paid 03/04/09".
(3) There was an email timed at 15:54 on 5 March 2009 from Linda at the clinic to Hugh McDonald at the hospital ("Dear Hugh"), setting out "details of new bookings", including that for Patient A. It requested theatre time at 11am on 11 April 2009, and asked for confirmation.
(4) There was an email in reply from Mr McDonald (the Anaesthetic Co-ordinator) at 15:57pm the same day, confirming all the bookings by stating "This will be fine".
(5) There was a letter from Dr Dutta dated 11 March 2009, confirming receipt of the £500 deposit, the date and time of the procedure, and the follow up review appointments thereafter.
"Q. Your explanation for how it is that your recollection differs from all these documents is that these are mock-ups?
A: No, I didn't say that. You said that."
It was not the GMC's case that any of the documents had been fabricated or tampered with. Counsel confirmed as much to the Chair. The authenticity of these records was not in dispute between the parties. This was not the only occasion on which Patient A suggested forgery or falsification of the records. Later, Counsel questioned her account of what had been said when her breasts were scanned, suggesting it was inconsistent with the contemporary records. The witness said "That is the truth and I don't believe these documents. I think they have been falsified".
Dutta's wife, Wendy, a Registered Nurse who was the Practice Manager at the clinic, that she could "categorically state" that it was not the case that any discount had been offered. Her reasoning was that the practice never offered discounts to secure earlier surgery, and the booking process with the hospital required 2 weeks' notice. She also gave evidence that she had been present on 5 March 2009, and witnessed no discount being offered.
"[29] The Tribunal noted that neither party sought to challenge Patient A's credibility. It is also noted that she made some concessions during her oral evidence, which enhanced her credibility.
[30] Dr
[31] However, the Tribunal noted that whilst weight could be assigned to the documentation, it is not determinative. The Tribunal noted the record of Patient A's appointments with Dr
[32] The Tribunal took into account Ms.
[33] The Tribunal assessed that Patient A's account of Dr
[34] The rationale which Patient A claimed Dr
[35] The Tribunal noted that Dr
[36] The Tribunal also noted the aforementioned questionnaire completed on the day of Dr
Dutta are "not enough to unseat their confidence in the evidence given by Patient A on this point". Putting it another way, Ms Hearnden says that the crux of the Tribunal's reasoning was that "they believed her", and then went on to look at whether her account chimed with other things they knew.
Dutta between 1:30pm and 2pm on 5 March 2009 but not fulfilled because, at some unspecified time during the 2 hours or so between then and 3:54pm (when the practice emailed the hospital) it had, in some unspecified manner and for some unspecified reason, "become clear" that the procedure could not be undertaken within a week. That is the effect of paragraph [31] of the Determination. As the GMC accepted at the hearing before me, the first time the parties became aware of this version of events was when they saw the Determination.
Dutta by the GMC for comment or response. A tribunal of fact in proceedings of this kind is not wholly constrained by the way the parties put their cases. It is entitled to test other hypotheses, and to form its own view. Sometimes, when preparing a judgment, a point of fact or law that has not been fully explored may occur to the tribunal. In these circumstances, if the point is one of moment, the usual and proper course is to refer the matter back to the parties. It is not fair to find against a party on a factual point of substance without giving that party a reasonable opportunity to address the point beforehand.
Dutta and his legal team, and that they should be given a reasonable opportunity to understand it, investigate it evidentially, call such evidence as they might, and make submissions about it. The GMC also ought to have been made aware that the Tribunal was considering a finding to this effect. It might have had something to say, evidentially or by way of submission.
Council v Y [2017] EWFC 36 [2017] 4 WLR 136. Key aspects of this learning were distilled by Stewart J in Kimathi v Foreign and Commonwealth Office [2018] EWHC 2066 (QB) [96]:
"i) Gestmin:
- We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate.
- Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of "flash bulb" memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event.
- Events can come to be recalled as memories which did not happen at all or which happened to somebody else.
- The process of civil litigation itself subjects the memories of witnesses to powerful biases.
- Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say.
- The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. "This does not mean that oral testimony serves no useful purpose But its value lies largely in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth".
ii) Lachaux:
- Mostyn J cited extensively from Gestmin and referred to two passages in earlier authorities.45 I extract from those citations, and from Mostyn J's judgment, the following:
- "Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance "
- " I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities "
- Mostyn J said of the latter quotation, "these wise words are surely of
iii) Carmarthenshire County
- The
- However, oral evidence under cross-examination is far from the be all and end all of forensic proof. Referring to paragraph 22 of Gestmin, Mostyn J said: " this approach applies equally to all fact-finding exercises, especially where the facts in issue are in the distant past. This approach does not dilute the importance that the law places on cross-examination as a vital component of due process, but it does place it in its correct context.
45 The dissenting speech of Lord Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403, 431; Robert Goff LJ in Armagas Ltd v Mundogas SA [1985] 1 Lloyd's Rep 1, 57."
I have emphasised passages that have particular resonance in this case.
Dutta to establish to the criminal standard a defence to the Charge (and to an amended version of the Charge, which had not been put to him). The Tribunal's task was, however, to assess the evidence in the round and decide whether the GMC had discharged the burden of showing that it was more likely than not that pressure was applied by means of a discount offer, for financial motives, as alleged in Charges 1(a) and 2.
Dutta "falsely told Patient A that you would not be using PIP implants during the surgery, or words to that effect", knowing that this was untrue, with the consequence that his conduct was dishonest (Charges 3(b), 4 and 5). Mr Counsell fairly submits that this was the most serious charge faced by Dr Dutta. It is certainly a very serious set of allegations. The Tribunal found these allegations were not proved, for reasons given in the Stage 1 Determination at paragraphs [52-57].
Dutta she had heard a BBC Radio 4 programme called "Medicine Now" discussing concerns about breast implant ruptures affecting French women. No record of the programme nor any other evidence could be found to support this. The evidence of an expert witness was that he would have known of it, if there had been any such programme. The evidence of the two experts was that "the issues with PIP implants had not been identified in 2009 and that Patient A could therefore not have known about them as stated". The Tribunal found this led to "questions regarding ... her ability to recall accurately the events from so long ago, and in light of all the developments since then". In this context the Tribunal gave "significant weight" to the submission of Mr Counsell that if things had taken place as Patient A maintained, it would have been "almost inconceivable" that she would have continued to see him and use his services for a further 5 years, as she did.
Dutta and others, before and after 5 March 2009, in the course of which she had the opportunity to gain considerable experience of procedures. The finding that she had been given this information by Dr Dutta at the meeting of March 2009 was not based on any evidence from her, nor was the proposition put to Dr Dutta. The Tribunal treated Dr Dutta's admission that he offered discounts on botox procedures as probative of Patient A's version of events, without addressing Dr Dutta's evidence (in cross-examination) that he would not give discounts for surgery as it risked "enticing someone to have surgery". The fact that the procedure and price were discussed and arranged with immediate effect was common ground, and surely neutral at best.
Dutta
" adopted a disingenuous smokescreen in the instant proceedings, particularly when considering his use of documentation to seek to discredit Patient A's assertion of being offered a discount ".
The conduct of a disingenuous defence, and a consequent assessment that the practitioner lacked insight, are plainly matters that are likely to have influenced the conclusions at these latter stages.
The Consent Charges
(1) Charge 3(a) alleged that on 2 April 2009 Dr Dutta consulted with Patient A and
" failed to (i) obtain adequate informed consent in that you did not advise Patient A of the risks of the surgery including [nine specified kinds of risk] "
The Tribunal found this proved save in respect of one of the nine risks, namely "anaesthetic complications".
(2) Charge 11(b) alleged that on 1 March 2015 Dr Dutta
" performed a procedure ("the third procedure") on Patient C. Prior to performing the third procedure you failed to (b) obtain adequate consent, in that the consent form was blank."
This was found proved.
(3) Charge 12(b) related to a further procedure performed on Patient C, labelled "the fourth procedure". It was alleged that
" Prior to performing the fourth procedure you failed to (b) obtain informed consent from Patient C in that you (i) obtained it on the day of the fourth procedure; (ii) did not record your full assessment of Patient C's concerns."
Both limbs of the charge were found proved.
(4) Charge 13(b) related to a "fifth procedure" performed on Patient C. It was alleged that
" Prior to performing the fifth procedure you failed to (b) obtain informed consent from Patient C in that (i) there was no signed consent form (ii) there was no record of possible scarring (iii) you did not record your discussion of the treatment options."
The Tribunal found that all three limbs of this charge were made out.
Charge 3(a)
Dutta and his wife gave evidence that the discussion of risk, and the provision of a leaflet to patients, were standard procedure at the time. However, there were no documents to corroborate this. The signed consent form for the procedure was "otherwise blank"; the sections that should have listed the materials provided to the patient not completed. Nor did Dr Dutta's statement give details of the risks that were or would have been explained. Patient A said otherwise. The leaflet she said she had been given by Dr Dutta was one outlining post-operative care, not potential risks and complications. She had conceded in cross-examination that some risks had been explained, and the corresponding aspects of the charge had been deleted accordingly; but she maintained that she had not had a full explanation. That evidence was accepted, her concessions enhancing her credibility. But the Tribunal found that Dr Dutta, who is not an anaesthetist, was not obliged to explain the risks of anaesthetic complications.
Charges 11(b), 12(b) and 13(b)
Dutta on that Charge, made similar points about the other two charges. Mr Counsell's principal attack is on the Tribunal's overall approach, for which purpose it is enough to quote what it said about Charge 11(b):
"[82] The Tribunal considered the submission made by Mr Counsell QC, that consent is an ongoing process and although the consent form was not completed these matters were adequately discussed with Patient C, who had a similar procedure undertaken by Dr
[83] In reaching its decision on whether Dr
"You must use the patient's
[84] The Tribunal determined that the procedure, although similar to one some weeks earlier, was a distinct procedure and therefore required documentation of the consent process, by either details within the patient's
[85] The Tribunal was not satisfied with Dr
Dutta's evidence that informed consent was obtained; to do so was a reversal of the onus of proof.
Dutta's case that on each occasion a patient came in there was a discussion about what was to happen for the next operation, and the patient would receive the necessary documents. The mere fact that a record is blank is not definitive proof that a conversation did not take place. But, the GMC submits, the Tribunal was entitled to reject Dr Dutta's assertion that he did acquire proper informed consent. In the absence of records or a signed consent form, and in the context of a pattern of poor compliance with appropriate consent procedures, it was entitled to infer the absence of informed consent. This is a matter on which the Court should show deference to the Tribunal.
Dutta failed to obtain consent "in that" a record of his doing so was lacking. As everyone acknowledges, there is a real difference between failing to obtain informed consent and failing to record it; the former does not follow from the latter. This drafting flaw is most clearly apparent in Charge 11(b), which explicitly asserts, as the only particular of a failure to "obtain adequate consent", that "the consent form was blank". There is also an inconsistency, which I have failed to understand, in the description of the consent which Dr Dutta failed to obtain. In Charge 11(b), it is "adequate consent"; in Charges 12(b) and 12(c) it is "informed consent". Charge 3(a) spoke of "adequate informed consent". I cannot help feeling that charges could be formulated with greater precision and consistency.
Dutta not only failed to record the consent referred to, he also failed to obtain it. That is how the case was contested before the Tribunal. Paragraph [83] of the Determination expressly refers to the Tribunal's "decision on whether Dr Dutta failed to obtain adequate consent". In relation to Charge 12(b), there is an explicit finding that Dr Dutta "had not obtained informed consent" (paragraph [90]) and, in respect of Charge 13(b), the Tribunal found "a failure to obtain adequate, informed consent" ([94]).
Dutta's evidence, which was in general terms, and to conclude that he had failed to rebut that evidential presumption.
Dutta advanced to the Tribunal and which it rejected. The Tribunal's reasons were that the wording of the document and surrounding circumstances weighed against Dr Dutta's contention. I remind myself that the assessment of the evidence is primarily for the Tribunal, and the appellate role is subject to the constraints I have mentioned. I do not believe I can find that the Tribunal's conclusion on this point was irrational, untenable, or otherwise wrong within the meaning of CPR 52.21.
"Taint" and safety
Dutta generally, and came firmly to the conclusion that his explanations should not be accepted. Although, he concedes, that is in general a legitimate approach, in this case it was likely to have resulted from the Tribunal's rejection of Dr Dutta's response to Charges 1 and 2 and its "irrational preference" for the account given by Patient A. Thus, it is argued, the Tribunal's view of Dr Dutta, as a witness and more generally, has been inevitably and fatally "tainted" by its rejection of his evidenced in respect of charges 1 and 2, to the extent that "it would be unsafe to allow any of the other proved charges to stand". This is said to apply to charges in respect of Patients C, D and E, as it applies to those relating to Patient A.
Dutta on Charges 1 and 2 and carried through that adverse view to all their other adverse findings. Rather the contrary. Ms Hearnden's submission is that the Tribunal carefully considered each allegation, on the basis of the evidence relating to that charge, which it subjected to critical examination. That is borne out by the details of the Tribunal's reasoning.
Dutta in relation to Charges 1 and 2 were not based on his credibility but on that of Patient A. The central flaw was not to dismiss what Dr Dutta said, but to play down the importance of the clinic's records, the authenticity and accuracy of which was not in doubt. The very next matter the Tribunal considered after Charges 1 and 2 was whether Dr Dutta had dishonestly represented to Patient A that the implants he was using were not PIP. Her evidence on that issue was rejected and Dr Dutta's case was accepted. The Tribunal's reasons for its other findings against Dr Dutta are rational, relevant, and sufficient, and they betray no indication that they were determined or affected by the Tribunal's thinking about Charges 1 and 2. The adverse finding I have quoted, that Dr Dutta used documents as a "smokescreen", comes from the Determination on Impairment, which was separate, and came days later. There is nothing in the first stage Determination to indicate that it was infected by that conclusion.
Dutta. It is also argued that the Tribunal's reasoning is deficient, as it fails to explain, adequately or at all, why Dr Dutta's account was rejected. I do not find these submissions persuasive, either. Charge 8 had five separate factual components. One was struck out. One was found not proved. The three that were found proved were (a) saying to Patient A "Oh, not another one", (b) saying to her words to the effect that Dr B had done the same thing to another patient, and (c) speaking to someone else on the phone about the incident and laughing about it. Dr Dutta admitted using the words in (a). The factual elements of (b) and (c) were established by reference to a recording of the telephone conversation, in which Dr Dutta, in the presence of Patient A, spoke to Marie, co-owner of the clinic. Dr Dutta's case was that the laughter, which he admitted, was nervous and hence not inappropriate. The Tribunal heard the recording, and found that Dr Dutta could be heard to laugh whilst "minimis[ing] Dr B's behaviour by stating that it would be commonplace in other countries." There are no grounds on which I could interfere with that finding of fact, or with the Tribunal's conclusion that this was "wholly inappropriate and undermining to the dignity of Patient A". The reasons, though concise, were sufficient.
The Rules
"No allegation shall proceed further if, at the time it is first made or first comes to the attention of the
The Five-Year Decision
"The allegations regarding Dr
The legal adviser has concluded that:
"In my view the reviews and ultrasound scan all relate to the breast augmentation surgery and can therefore be properly considered to constitute one course of treatment. All of Patient A's allegations should therefore be considered as a composite whole allegation. As the most recent event giving rise to the allegation is 25 August 2010, and falls within the relevant period of less than 5 years, the composite allegation should be considered in time by reason of the continuing nature of the events. My view is that Rule 4(5) is not engaged."
In view of the above advice, I am of the view that allegations that the clinical concerns about Dr
The "most recent event" referred to here was the 2010 Scan.
Delay
" CPR 54.5(1) provides that a claim for judicial review must be made "promptly and in any event not later than 3 months after the grounds to make the claim first arose". The Senior Courts Act 1981 s.31(6) provides that, where there has been "undue delay" in making an application for judicial review, the court may refuse to grant permission or relief "if it considers that the grant of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration". The expression "undue delay" in that provision is to be read as meaning a failure to act promptly or within three months: R v Dairy Produce Quota Tribunal ex p. Caswell [1900] 2 AC 738 at 746."
Dutta could not have made the claim at that time, as he was not told about either of those decisions until 24 November 2016. That was already more than 3 months after the claim arose. At that time, he was told of the Referral Decision but not told of the Five-Year-Decision. He was not told of the latter until 12 September 2019, and was not given a copy until 23 October 2019: [6(10)] above. His case is that for the purposes of considering timeliness, time should be treated as running from that last date, that he acted promptly and there was no "undue delay" thereafter, or, if there was, it would not cause any relevant hardship or prejudice nor would it be detrimental to good administration to grant permission, and allow the Claim to proceed.
(1) First, it is submitted that the critical date is when the claimant came to know of the "material matters" (see World Development, 402G-H). It is suggested that Dr Dutta could and should have inferred from what he did know that the GMC had decided that the 5-year rule was not engaged. It was apparent to him that the GMC was not treating any of the allegations as time-barred by the five-year rule. He could and should have worked out for himself why that was, and acted sooner to challenge the decision.
(2) Secondly, the GMC maintains that to grant permission or relief now would be detrimental to good administration. The argument is that Dr Dutta chose to delay his judicial review challenge, and instead to allow a 17-day hearing to proceed, with all the resources that consumed, with a view to keeping open his options. He could and should have pursued the challenge immediately he was in possession of sufficient knowledge to do so. The consequences of a successful review challenge would be highly significant, and might extend to putting much of the expense to waste, and require the re-making of the Five-Year Decision, and fresh proceedings.
Dutta had enough information to proceed, which is when he received a copy of the Referral Decision; and in all the circumstances it was brought with reasonable promptness. Further, if the Claim has arguable merit (and it will be clear already that I believe it has more than that) it would in my judgment be detrimental to good administration and manifestly unjust to Dr Dutta to refuse any necessary extension of time and/or to refuse permission on the grounds of delay.
Dutta did not have actual knowledge that a decision had been made that the 5-year rule was not engaged at any time before 12 September 2019. In 2016, he did not have legal advice. When he did obtain expert advice, his lawyers were unable to identify the true nature of the AR's decision. On 3 September 2019, Clyde & Co wrote to the GMC, noting that some of the allegations dated back to 2009, and saying this:-
"The current case commenced in 2016, meaning that a Registrar would have had to make a R4(5) determination that it was in the public interest for these allegations to proceed. Could you confirm when this happened, and let me have a copy of the determination?"
That is, in my view, a reasonable question. It is the question that led to the revelation of the existence and then the text of the Five-Year-Decision. The inference that the GMC may have concluded that the 5-year rule was not engaged may have been open to Clyde & Co, but it was far from obvious. Rule 4(3)(b) required the Registrar to notify a practitioner, if the Registrar considered an allegation was barred by the five-year rule and it was not in the public interest for the allegation to proceed. But the Rules did not require notification of a decision that it was in the public interest.
Dutta and his legal team with an uncomfortable dilemma. He had belatedly been told of an arguably unlawful GMC decision on the 5-year rule. Three working days later, he was to face day one of a four-week fitness to practise hearing encompassing 23 separate allegations, only some of which were covered by that decision. His lawyers' first thought, to apply to strike out, was stymied by the legal obstacle. As the GMC pointed out, the Tribunal had no jurisdiction over the matter. Judicial review was the only available avenue. The decision taken was to reserve Dr Dutta's position and proceed with the substantive hearing, in the knowledge that if "acquitted" he would not need to pursue judicial review.
Dutta should have sued the GMC in the Administrative Court at the same time as contesting the fitness to practise proceedings would be unreal. That has not been Ms Hearnden's submission. She has argued that it was unreasonable to leave the matter in abeyance. Dr Dutta could and should have applied urgently to this Court, seeking a short adjournment of the fitness to practise proceedings for that purpose. She cites R (Mahfouz) v GMC [2004] EWCA Civ 233 as an illustration of that approach in action. So it is. But it is not binding authority. It was very different on its facts, and each case must turn on its own particular circumstances. Here, I do not agree that the stance adopted by Dr Dutta was unreasonable, still less that the pursuit of proceedings on 23 December 2019 represented undue delay.
Dutta's decision, and his intended course of action, were made quite clear to the GMC and the Tribunal. Mr Counsell said
"We've considered carefully with Dr
Dr Dutta's conduct thereafter was consistent with that stance. The GMC's submission to me might have been more persuasive if it too had taken a clear and consistent position. But on 28 October 2019, Counsel for the GMC (not Ms Hearnden) said nothing to encourage an application to adjourn and an immediate application for judicial review. Nor did he say that the GMC would complain of delay if those steps were not taken. It lies ill in the GMC's mouth to complain now that Dr Dutta took a course which the GMC was not even criticising at the time, when his position was made plain. The need to pursue judicial review became clear when the Tribunal rendered its stage 1 Determination. The Claim Form was issued within six weeks.
The Merits
Dutta's conduct towards Patient A. Allegations (a) to (c) related to 2009. They alleged that Dr Dutta failed to provide appropriate advice before the Augmentation Operation, offered a financial incentive to have that operation the following week, failed to perform it competently, and falsely told the patient nothing was wrong. Allegation (d) related to the 2010 Scan. The allegation was that, having scanned the patient, Dr Dutta had "reported nothing wrong, even though the radiologist had told her both breasts were full of infected fluids and the implants needed immediate removal". In other words, this was the 2010 Allegation. Allegation (i) was that Dr Dutta "may not have been allowed to operate" during 2009. Allegation (j) was that he had been misrepresenting himself as a surgeon.
Dutta behaved. In relation to the Augmentation Operation, there were four separate and distinct topics. They were in substance separate allegations, independent of one another, each of which could properly be regarded in isolation as calling into question Dr Dutta's fitness to practise.
"The complainant has raised a number of concerns about the standard of treatment provided by Dr
.
Dr
The AR then went on to consider, individually, allegation (i), and to dismiss it on the basis that Dr Dutta's registration history showed that he was not suspended from practice.
Dutta failed to provide appropriate pre-operative advice. Nor, obviously, can the alleged events of August 2010 be "events giving rise to" the allegation that Dr Dutta offered the patient a financial incentive in 2009. On the face of the reasoning set out above, the AR proceeded on the erroneous basis that where a patient makes a number of related allegations all concerned with a single "course of treatment", the term "allegation" should be given some composite meaning, and the 5-year rule applied to the whole. That is wrong in law.
"Occasionally, but not often, a single complaint document contains more than one distinct allegation. The Registrar needs to be aware of this possibility and to pinpoint the allegation in question before applying rule 4(5)."
That is a task which was carried out by the author of the Allegation Information. It was also a task the AR carried out in the first part of the decision reasoning, where the allegations were identified separately. But the AR failed to carry through that analysis when it came to the application of Rule 4(5), with the consequence that the decision reached was wrong in law.
Dutta. But the AR fixed on the 2014 Conversation as the relevant date. In my judgment, that is an artificial and unreal approach, such that the decision on this point was wrong in law also.
Dutta and Dr B. Understandably, given that this is a report to and by the police, it focuses on the allegations of sexual assault by Dr B, and the trauma experienced by Patient A. There is incidental reference to the surgery undertaken by Dr Dutta having "gone wrong". But the GMC did not see this as an allegation of unfitness to practise. It took no action at the time, or for over a year after that: see [6(1)-(2)] above. The GMC saw the 2014 Conversation as a report of a complaint about Dr B. This is reflected in the first paragraph of the Referral Decision (emphasis added):
"In 2014, the GMC received a complaint from [Patient A] in relation to [Dr B]. However, as part of the open investigation we have since received further information which has raised concerns about the conduct and treatment of Dr
Put another way, allegations of unfitness to practise were not made to the GMC nor did they "come to the attention" of the GMC in September 2014. It was not until further information was provided that the GMC identified such allegations. It was evidently the 2015 Statement and the CQC referral of November 2015 that contained the relevant information, or were the prompt.
Dutta and its consequences, including food intolerance and allergies, the note contains nothing about any offer of a discount for swift surgery. It cannot be said that allegations (a) or (b) were "first made" in September 2014, or that they first came to the GMC's attention at that time. The same is true when it comes to the allegations of dishonest misrepresentation in respect of the PIP implants.