Warby J heard a judicial review challenge to the decision of the GMC’s Case Examiner to refer allegations to the Medical Practitioners Tribunal (MPT) (“the 2009 allegations”), alongside a statutory appeal against the MPT’s ultimate decision to impose a sanction on the allegations which had been proved.
The judicial review claim was argued on the basis that the Case Examiner’s decision to refer the 2009 allegations to the MPT (made under Rule 4(2)) should have been time barred by the operation of Rule 4(5), known colloquially as the “five year rule”. In the case of Dr Dutta, a patient had made complaints which spanned a number of appointments and raised a range of concerns, which came to the GMC’s attention some years later. Warby J gives helpful guidance on the approach to be taken by a regulator when considering a number of allegations spanning a lengthy period and the application of time bar.
The MPT heard evidence over 17 days and made findings of fact against the doctor, including in relation to the 2009 allegations. It went on to make findings of current impairment, and imposed a suspension. The doctor exercised his statutory right of appeal under s.40 of the Medical Act 1983 to challenge the findings of fact made on the 2009 allegations, on the basis that the MPT’s approach in preferring the patient’s evidence over the doctor’s and the contemporaneous documents, was wrong.
Warby J undertook an extensive survey of the authorities dealing with the approach to witness evidence and credibility, to provide something of a blueprint for tribunals and for challenges to findings of fact on appeal.
The judge found that the MPT had erred in its approach to the witness evidence on the 2009 allegations, but held that it should not have heard those allegations in the first place because the older allegations should have been time barred. On the unusual and complex procedural history of the case, Warby J found that it was not detrimental to good administration to quash the original referral of the 2009 allegations even after the MPT had heard the allegations and made findings warranting sanction against the doctor.
The balance of the findings of fact will be remitted to the MPT for re-determination on impairment and sanction (if appropriate).
Alexis Hearnden acted for the GMC (instructed by GMC Legal).
Read the judgment here.