Shanker v General Medical Council 2015 (unreported)

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The Applicant made an application for an extension of time to appeal against a decision of the fitness to practise panel of the General Medical Council. The Applicant sought to rely on the decision in Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818, in which the Court of Appeal found that an absolute and strict application of time limits had amounted to a breach of Article 6 of the ECHR. The Court held that the decision in Adesina could not be retrospectively applied in this case, and, in any event, the Applicant had not demonstrated exceptional circumstances for the delay in lodging an appeal. The application was refused.

Facts

The Applicant had been the subject of a number of fitness to practise hearings brought by the Respondent since 2001 and consequently had been subject to a number of interim suspension orders restricting his practice during this period.

In 2009 the Applicant's fitness to practise was found to be impaired on the basis of an allegation of dishonest conduct. The Applicant was subsequently erased from the register. The Applicant was informed at the hearing and in writing, that he could appeal the decision within 28 days.

The Applicant did not lodge an appeal within the 28-day time limit. He did, however, apply for judicial review of the decision within this time period. The Applicant applied for the judicial review to be “converted” into an appeal under the Medical Act 1983. The application for judicial review (including the request to convert the judicial review to an appeal) was refused and the High Court imposed civil restraint order on the Applicant (R (Shanker) v GMC [2010] EWHC 3689).

The Applicant then applied for an extension of time to bring an appeal against the decision to erase him from the register, submitting that the Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818 case which, held that an absolute and strict application of time limits breached Article 6 of the ECHR, should be applied retrospectively.

Judgement

Handed down by His Honour Judge Sycamore.

Sycamore J. held that there was nothing to suggest that Adesina applied retrospectively to decisions that had already been made. It was noted that judicial decisions do not have retrospective effect on decided cases, although this position was different in relation to on-going cases. The Court therefore considered that Adesina could not have a retrospective effect on the Applicant’s case, and the earlier decision not to allow the appeal to be brought out of time, must stand.

Sycamore J. further noted that even if Adesina did apply in this case, the Applicant did not come close to meeting the exceptional circumstances required in order to bring an appeal outside of the 28 day time limit. The Court noted that the Respondent had complied with its statutory duty to inform the Applicant of his right to appeal within 28 days, and that the Applicant had advanced no explanation as to the delay in appealing within this time.

The application was refused.

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