A powerful message for all involved in regulatory proceedings

29th July 2020

We look at a case that will affect regulatory proceedings and is well worth noting.

The case

In Dutta, R (On the Application Of) v General Medical Council (GMC) [2020] EWHC 1974 (Admin), Mr Justice Warby sets out a powerful critique of the reasoning given by the Medical Practitioners Tribunal in 2019 and the full judgment is essential reading for all parties involved in regulatory proceedings.

The regulators

Make sure that you can properly reason your decisions, at different stages of your process, to explain why concerns against a registrant have been referred for further investigation. This reasoning is of even more importance when time-bars are involved and justification for the legitimacy of proceeding needs to be provided, sometimes years after the event.

Contemporaneous records, which are clear and understandable (even if disagreed with), are as essential for regulators as they are for those regulated.

The tribunal

The judgment is a pertinent reminder to tribunals that, whilst appellate courts will hesitate to interfere with decisions, they will do so when needed, especially when the decision is poorly reasoned or inconsistent with itself. In this case, the Tribunal determined a charge on a hypothetical interpretation of events, which was contrary to some of the evidence it received, and without either party being able to make submissions on the Tribunal’s version.

The judgment also includes an essential summary of the guidance and case law on assessing witnesses, as well evidence in general and the burden of proof.

I regret to say, in my judgment the Tribunal’s reasoning process is vitiated by at least three fundamental errors of approach. First, the Tribunal approached the resolution of the central factual dispute by starting with an assessment of the credibility of a witness’s uncorroborated evidence about events ten years earlier, only then going on to consider the significance of unchallenged contemporary documents. Secondly, the Tribunal’s assessment of the witness’s credibility was based largely if not exclusively on her demeanor when giving evidence. Thirdly, the way the Tribunal tested the witness evidence against the documents involved a mistaken approach to the burden of proof and the standard of proof.

The respondent / registrant

But perhaps of equal importance is that this case reiterates the benefit to professionals, under investigation by their regulator, to secure knowledgeable legal representation at the earliest possible stage – it was not until Dr Dutta instructed his solicitors, that the right questions were asked of the GMC, which gave him the information to bring the successful review. If these questions had been asked earlier, he may have avoided at least some of the charges against him and some of the years of stress.

The evidence clearly shows that Dr 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.

Blake Morgan has a team of regulatory lawyers, experienced in defending professionals and working towards the best outcome to ensure your reputation and career remain intact.

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