|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Dutta, R (On the Application Of) v General Medical Council (GMC)  EWHC 1974 (Admin) (22 July 2020)
Cite as:  EWHC 1974 (Admin),  ACD 112,  Med LR 426
[New search] [Context] [View without highlighting] [Printable PDF version] [Help]
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
Royal Courts of Justice,
Strand, London WC2A 2LL
B e f o r e :
| The Queen on the application of
Dr Ashish Dutta
- and –
|General Medical Council
Alexis Hearnden (instructed by GMC UK) for the Defendant/Respondent
Hearing dates: 10-11 June 2020
Crown Copyright ©
Mr Justice Warby:
(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  EWHC 135 (Admin)  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.
(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).
(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
(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)  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  (Auld LJ, citing Dupont  (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 , 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],  (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  (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  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  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  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.
The Discount Charges
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.
Your conduct as set out at paragraph 1(a) ... above was financially motivated.
(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".
" 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.
 Dr Dutta argued that her account that she was offered a discount if she were to have the procedure the next week cannot be correct as the initial consultation took place on 5th March 2009, yet the procedure was not undertaken until 11th April 2009, and therefore not the following week. He relies upon the documentation within her medical records to rebut her account. He also argued that the practice of the clinic was to offer a fixed price and not to offer discounts.
 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 Dutta, including a 30-minute appointment on 5th March 2009, commencing at 1:30pm. It also noted the email from Dr Dutta to Mr. McDonald at the hospital in which the procedure was to be undertaken, dated 5th March 2009 and sent at 3:54pm, detailing that the date of the procedure was to be 11th April 2009. A questionnaire completed by Dr Dutta after his consultation with Patient A was completed after the email as it details that Mr. McDonald had been emailed. As such, the documentation does not preclude that between 1:30pm and 2pm Dr Dutta offered the discount to Patient A, but between then and the sending of the e-mail, it had become clear that the procedure could not be undertaken so soon.
 The Tribunal took into account Ms. Dutta's evidence that during the consultation she did not witness any discount being offered, however, it bore in mind Patient A's evidence that the offer had been communicated in the stairwell and not the consultation room.
 The Tribunal assessed that Patient A's account of Dr Dutta offering her a discount was emphatic and assured, and that whilst it may be expected that recollections of events could be inaccurate and have evolved over time, it is less likely that an event would be contrived in its entirety as a result of the passage of time.
 The rationale which Patient A claimed Dr Dutta stated at the time, namely savings on hospital theatre booking fees, aligned with the process and cost components of such arrangements as he described in his oral evidence. The Tribunal deemed it unlikely that Patient A would have had such an understanding of this process and associated cost structure had she not been provided this information by Dr Dutta.
 The Tribunal noted that Dr Dutta stated in his oral evidence that he had previously offered Patient A discounts for fillers if undertaking a botox procedure. Further, the Tribunal noted that documentation within the bundle concerning Patient C in which it was stated that Dr Dutta had offered a discount, albeit in different circumstances and whilst working for NU Clinic.
 The Tribunal also noted the aforementioned questionnaire completed on the day of Dr Dutta's consultation with Patient A on 5th March 2009, in which it states that she had been given a quote by Dr Dutta. This supports her assertion that the price was discussed. Patient A paid the deposit for the procedure on the date of the consultation and this indicates that a procedure and price were arranged with immediate effect."
- 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".
- 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 general application and are not confined to fraud cases… it is certainly often difficult to tell whether a witness is telling the truth and I agree with the view of Bingham J that the demeanour of a witness is not a reliable pointer to his or her honesty."
iii) Carmarthenshire County Council:
- The general rule is that oral evidence given under cross-examination is the gold standard because it reflects the long-established common law consensus that the best way of assessing the reliability of evidence is by confronting the witness.
- 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  2 Lloyd's Rep 403, 431; Robert Goff LJ in Armagas Ltd v Mundogas SA  1 Lloyd's Rep 1, 57."
I have emphasised passages that have particular resonance in this case.
"… 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.
Charges 11(b), 12(b) and 13(b)
" 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 Dutta the prior month.
 In reaching its decision on whether Dr Dutta failed to obtain adequate consent for this procedure the Tribunal balanced the evidence of the defence expert witness Mr. Percival that a lack of a signed consent form does not in and of itself prove that there was not adequate consent against paragraph 51 of the GMC guidance on consent which states:
"You must use the patient's medical records or a consent form to record the key elements of your discussion with the patient. This should include the information you discussed, any specific requests by the patient, any written, visual or audio information given to the patient, and details of any decisions that were made."
 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 medical records or a properly signed consent form.
 The Tribunal was not satisfied with Dr Dutta's claim that adequate consent would have taken place but was just not clearly documented, and in the absence of either records or a signed consent form to evidence this they found this paragraph of the allegation proved. It also took into account its finding, particularly in relation to paragraph 12b of the allegation, which indicates a pattern of poor compliance with appropriate consent procedures."
"Taint" and safety
"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."
The Five-Year Decision
"The allegations regarding Dr Dutta appears (sic) to have first come to the GMC's attention on 24 September 2014. However, as some of the other allegations relate to issues over five years before that date then have sought legal advice … to see whether these allegations might form a continuing course of conduct on the part of Dr Dutta.
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 Dutta do form a continuous course of conduct and therefore the 5-year rule is not engaged."
The "most recent event" referred to here was the 2010 Scan.
"… 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  2 AC 738 at 746."
(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.
"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.
"We've considered carefully with Dr Dutta whether or not we should be asking you not to proceed with paragraphs 1 to 6 of the allegations and go to the Administrative Court now. We don't think that's sensible, for obvious reasons. We are here today and it would be crazy to do that."
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 complainant has raised a number of concerns about the standard of treatment provided by Dr Dutta to the complainant. … Prior to [the] surgery the complainant was worried she was too thin to have implants put under her skin, but Dr Dutta allegedly assured her that she had enough breast tissue for this and went ahead …
Dr Dutta later performed a scan of the patient's breasts on 25 August 2010 and reported nothing was wrong…"
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.
"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.
"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 Dutta. Therefore, in June 2016, an internal triage request was sent to Triage to allow us to consider the allegations about Dr Dutta."
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.