R (Chaudhuri) v General Medical Council  EWHC 6621
The High Court recently considered two applications focused on decisions by the GMC's Assistant Registrar to allow claims to proceed more than five years after the events giving rise to the allegations in question. While Gannon is particularly interesting in its own right (for its consideration of procedural fairness and of the duty of managers as opposed to clinicians), collectively the judgments illustrate the circumstances in which a regulator has an inherent power to revisit its own decisions, highlighting the circumstances in which a decision may be revisited by the regulator due to a fundamental mistake of fact.
In Gannon G challenged a decision to allow allegations against him to proceed beyond the screening stage outside of the five-year time limit in rule 4(5) of the GMC's Fitness to Practise Rules (the so-called 'five year rule'). This states that "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 it is in the public interest, in the exceptional circumstances of the case, for the complaint to proceed]."
G had employed S, a vascular and oncology surgeon in 1998. G had been promoted to the position of Medical Director of the Trust by the time concerns were first raised about S's practice in 2002. G commissioned investigations into these allegations and S's practice was restricted by the Trust in 2007. Patients whom S had treated were recalled between 2009 and 2011. Nonetheless, S remained on the Trust's performers list until 2011 and was suspended by the GMC in 2012. A report published in December 2013 into S's practice at the Trust concluded that its Senior Managers (including G) had failed to take effective action to protect patients in response to repeated concerns raised about S's practice and performance.
The matter was reported to the GMC. The Assistant Registrar considered the December 2013 report, and decided that there were exceptional circumstances in issue, and that it was in the public interest for the allegations to proceed beyond the screening stage. G sought judicial review of the decision.
While G accepted that there was no general duty on the Assistant Registrar to give a practitioner the opportunity to make representations, he contended that in the present case, fairness required that he be given such an opportunity. He argued that because there was no complaint as to his clinical ability – rather, the allegations were of misconduct in a managerial capacity related to medical practice - the allegations were insufficiently specific as to the nature of his involvement in S's management. G argued that reliance on the December 2013 report was inadequate for the GMC to have properly understood the context of the issue.
While the Court accepted that the question of whether fairness requires the Assistant Registrar to allow a practitioner to make representations at the screening stage is dependent on the individual circumstances of the case, the court rejected the application for judicial review. It concluded that the Assistant Registrar had enough material to enable him to make a decision as to whether the allegations called G's fitness to practise into question, and as to whether or not the five year rule could be waived, without further investigation and without it being necessary to give the opportunity to G to make representations. The Court distinguished the case from R (Grabinar) v GMC  EWHC 4480 (Admin), where the evidence available to the Registrar made only general criticisms of several registrant managers without distinguishing their individual levels of responsibility and culpability. Further, the Court observed that G had offered nothing about what he would have said in response to the allegations had he been given the opportunity. The Court considered that this was a "telling point" and that it highlighted that G had failed to show substantial rather than technical prejudice.
Interestingly, G raised other procedural points which were dismissed by the Court, including that the Registrar had acted unlawfully by not reconsidering the decision under Rule 4. The Court noted (at paragraphs 48 to 51) that the Registrar is functus officio under Rule 4 once a decision has been made to refer allegations to the Case Examiners and has no power to reconsider such a referral decision. The Court referred to R (Rycroft) v RPSGB  EWHC 2832, R (Hibbert) v GMC  EWHC 3596, and R(B) v NMC  EWHC 1264.
On its face, the statements that the Registrar is functus officio once a decision has been taken under rule 4 is emphatic. However, it is noteworthy that the Court referred to B v NMC. B itself refers to R (Jenkinson) v NMC  EWHC 1111. Jenkinson established that, absent explicit statutory powers, regulators nevertheless have an inherent power to revisit decisions erroneously made on the basis of slips, accidental mistakes or miscarriages of justice. Additionally, although it was not referred to in Gannon, it is important to bear in mind Fajemisin v GDC  EWHC 3501, which held that a regulator can revisit a decision made on the basis of a fundamental mistake of fact. The statement of the Court in Gannon that the Registrar has no power to reconsider a decision at the Rule 4 stage should be tempered by the decisions in Jenkinson and Fajemisin.
This is amply illustrated by the decision in Chaudhuri. A complaint was made against C in which the complainant stated that the most recent events forming part of the complaint occurred in August 2008. The complaint was received in July 2013. Therefore the complaint was not time-barred under the five year rule and the Assistant Registrar referred the complaint for consideration by the GMC's Case Examiners.
At this point C was contacted about the complaint. In response, he produced medical records demonstrating that the most recent event complained about had actually occurred in May 2008 (i.e. more than five years prior to the complaint being received by the GMC). C argued that on this basis the original decision should be reconsidered. The GMC refused to do so. C appealed to the High Court.
The GMC argued that the reference to "the most recent events giving rise to the allegation" referred to the "alleged" events rather than the "actual" events, and that the Assistant Registrar could only proceed on the basis of the information available at the time that their decision was made. The court disagreed, noting the "plain, ordinary meaning of the words" and the disconnect between the words "events" and "allegations" in rule 4, and the fact that this construction was supported by the GMC's own guidance. The court also noted that the purpose of the Rule is to safeguard against stale and historical complaints, requiring its interpretation to be tied to "actual" events.
The court emphasised that the relevant wording of Rule 4(5) was objective and binary. It was clear that a different decision would have been reached by the Assistant Registrar if the factual error had not occurred. For these reasons, the court ruled that the Assistant Registrar had made a "material error" when making her original Rule 4(5) decision. On this basis the court had the power to quash and remit the decision for reconsideration.
The court went on to consider the second ground of challenge, namely that the GMC had acted unlawfully in refusing to reconsider its original decision. The GMC had argued that the Assistant Registrar had no power to reconsider a decision to refer a matter to the Case Examiners, once that decision had been made. It also referred to Rule 12 of the GMC's Rules which provided for review of a limited range of decisions, but not the current circumstances. Citing Fajemisin and distinguishing Gannon, the court was clear in stating that "public bodies have the inherent or implied power themselves to revisit and revoke any decision vitiated by a fundamental mistake as to the underlying facts upon which the decision in question was predicated…to suggest otherwise would be to allow process to triumph over common sense". The court emphasised that administrative law should be based on common sense, proportionality and fairness. It ruled that in these circumstances the Assistant Registrar's refusal to reconsider her decision was unlawful.
The court considered Gannon and distinguished it on the basis that it did not involve a fundamental mistake of fact. From these cases it is reasonable to suggest that regulators will not be able to reconsider decisions requiring judgment or subjective assessments. It is notable that the Hibbert and Rycroft decisions referred to in Gannon related to more subjective assessments and that in B v NMC the court expressly disapproved the notion that such decisions could be revisited.
Interestingly the court also stated that the wording and objective nature of Rule 4(5) meant that it could operate at any stage during the disciplinary process. In giving judgment, Haddon-Cave J did not indicate that this is limited to e.g. the point at which the Investigation Committee refers the matter for a formal hearing (though he noted that in practice any mistakes or misunderstandings as to the dates of the events giving rise to the allegations are likely to be picked up at an early stage of proceedings). The implication of this is that the decision could even be revisited during a fitness to practise hearing; it remains to be seen whether future decisions of the higher courts rein in this apparently 'at large' power to any significant extent.
 In accordance with Roylance v GMC  1 AC 311