Chaudhuri v General Medical Council
High Level Summary
The High Court considered the application of Rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004, known as the "five year rule" and the circumstances in which the GMC has the power to revisit their decision on the basis of a fundamental error.
The Claimant, Dr Chaudhuri, challenged the GMC's failure to apply the five year rule and their subsequent refusal to revisit its initial decision when it was pointed out that the decision was based on a factual error.
Rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004 state that:
"No allegation shall proceed further if, at the time it is first made or 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."
On 26th July 2013 the GMC received a complaint relating to Dr Chaudhuri's treatment of a patient in April, June and August 2008. The patient had presented on all three occasions with a large lump on his neck and Dr Chaudhuri had prescribed antibiotics on all three occasions. The patient was subsequently seen by a locum GP who referred him to an ENT consultant who diagnosed the patient with stage 2 tongue cancer.
The complaint, which was made by a relative of the patient, had incorrectly noted the dates of the 2008 consultations with Dr Chaudhuri as being in April, June and August 2008. On 30th July 2013 the appointed Assistant Registrar at the GMC, examined the complaint under Rule 4 and concluded that Rule 4(5) was not therefore engaged.
In October 2013 the patient's medical notes were received by the GMC and they showed that the latest consultation had taken place on the 22nd May 2008, as opposed to a date in August 2008, more than five years prior to the complaint being received.
In September 2014 Dr Chaudhuri's solicitors drew the GMC's attention to the factual error in the Assistant Registrar's decision as a result of the incorrect dates and invited the GMC to reconsider their original decision.
In October and December 2014 the GMC confirmed it was not prepared to revisit the Assistant Registrar's decision under Rule 4(5) stating that at the time the allegation was received by the GMC, the Registrar correctly determined that the five-year rule was not engaged.
In February 2015 judicial review proceedings were issued on behalf of the Claimant. The Grounds lodged in support of Dr Chaudhuri's judicial review can be summarised under the following three heads:
- Error of fact
- Refusal to reconsider
- Procedural unfairness
1. Error of fact:
The Claimant argued that reference to "the most recent events" is a reference to the actual events from which the allegation(s) arise. The GMC argued that "the most recent events" refers to the alleged events and does not therefore give rise to any issue of precedent or jurisdictional fact.
Haddon-Cave J, confirmed at paragraph 37:
"the date upon which an event or an alleged event took place (as opposed to the event itself) is an objectively verifiable fact" and that calculating the period of five-years is an equally objectively verifiable matter and does not require a value judgment.
At paragraph 38 he confirmed that Rule 4(5) "raises an objective question of precedent or jurisdictional fact".
2. GMC's refusal to reconsider their decision
The Complainant argued that the GMC had an inherent or implied power to correct a decision made as a result of a fundamental mistake of fact. The GMC submitted that in the absence of an express power, a statutory body has no power to reconsider previous decisions, except to correct "minor slips or accidental errors", and that this case could not properly be described as falling into the category of a "minor slip."
At paragraph 46 Haddon-Cave J adopted the analysis of Keith J in Fajemisin v GMC  EWHC 3501 (Admin), who followed the Divisional Court in Porteous v Wess Dorset District Council  EWCA Civ 244, stating that "public bodies have the inherent or implied power to revisit and revoke any decision vitiated by a fundamental mistake as to the underlying facts upon which the decision in question was predicated."
3. Procedural unfairness
At paragraph 59 Haddon-Cave J confirmed that the Registrar was entitled to rely on the assertions made in the original complaint to the GMC and that in the absence of "special reason" for doubt, the Registrar is not obliged to double check the details if the complaint at the "triage stage" as this would be impractical and "wasteful" on the basis of the amount of complaints received by the GMC.
He held that there was no procedural or other unfairness at the initial investigation stage and therefore dismissed this ground.
Grounds 1 and 2 were successful. The original Rule 4(5) decision by the Registrar was quashed and the matter was remitted for reconsideration.
Haddon-Cave J concluded at paragraph 69:
"There was an error in the complaint lodged on behalf of the patient, namely that he had last been treated in August 2008, rather than May 2008. This was a fundamental and material error of fact. As a result of this error of fact, the Registrar fell into error in deciding that the five-year rule did not apply. Further, when the error was pointed out, the GMC should have corrected its original decision but refused to do so."