Dr Rinku Sengupta v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 31 May 2023 |
| Neutral Citation | [2023] EWHC 1302 (Admin) |
| Docket Number | Case No: CO/675/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 1302 (Admin)
THE HONOURABLE Mr Justice Linden
Case No: CO/675/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Dr Rinku Sengupta in person
Benjamin Tankel (instructed by Thirty Nine Essex Chambers) for the Respondent
Hearing date: 10 th May 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 31 st May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
On 21 January 2022 the Medical Practitioners Tribunal (“MPT”) made two decisions in relation to Dr Sengupta. First, it refused her third application, made pursuant to section 41(1) of the Medical Act 1983, to be restored to the medical register (“the restoration decision”). Second, the MPT went on to direct, pursuant to section 41(9) of the 1983 Act, that her ability to make further applications for restoration be suspended indefinitely (“the suspension decision”).
These two decisions were set out in separate documents and sent to Dr Sengupta under cover of an email, dated 24 January 2022, which informed her that there was no right of appeal against the restoration decision and that any challenge to this decision could only be made by way of a claim for judicial review. The email went on to say that, however, there was a right of appeal against the suspension decision. The 28 day time limit for such an appeal under section 40(4) of the 1983 Act was set out, and the deadline was said to be 25 February 2022. A note explaining Dr Sengupta's right of appeal was attached. This gave further guidance on how to appeal, referring to CPR Part 52 and providing a link to the Civil Procedure Rules.
On 24 February 2022, Dr Sengupta filed an N161 Appellant's Notice. She was, in fact, 3 days late in doing so because the true deadline was 22 February 2022. But the GMC did not object to an extension of time for her to appeal given that Dr Sengupta was evidently relying on the incorrect date stated in the GMC's 24 January 2022 email. Having considered the principles set out in Lars Stuewe v Health and Care Professions Council [2022] EWCA Civ 1605, I was prepared to accept that there were exceptional circumstances which required me to relax the strictness of the 28 day time limit under section 40(4) of the 1983 Act and I therefore granted an extension of time to 24 February 2022.
A second preliminary point raised by Mr Tankel was as follows. In his skeleton argument he submitted that the only decision of the MPT which could be considered by me, given that Dr Sengupta had not brought a claim for judicial review, was the suspension decision. Section 40(1) of the 1983 Act identifies the decisions of an MPT which may be the subject of an appeal. These include, at (a), the original direction for erasure or a decision to impose some other disciplinary measure and, at (b), a decision to give a section 41(9) direction. Under section 40(1A)(a) and (b), there is also a right of appeal against a refusal to restore to the register where the erasure was administrative in nature (i.e. it was because the practitioner's address was out of date or because of failure to pay the prescribed fee) or the erasure was voluntary and, in any of these three cases, there is a refusal to restore to the register for a reason related to the practitioner's fitness to practise. But section 40 does not include a right of appeal against a refusal to restore to the register after erasure where the original erasure was on the grounds of unfitness to practise.
So, submitted Mr Tankel, the bulk of Dr Sengupta's arguments, as set out in her Notice of Appeal and amplified in her skeleton argument, were besides the point because they criticised the restoration decision rather than the suspension decision. I did not have jurisdiction to entertain a challenge to the restoration decision and I was therefore bound to accept it in its entirety, however obvious it might be that there were flaws in it, and to adjudicate the appeal against the suspension decision on that basis. Moreover, for this reason he did not propose to address Dr Sengupta's criticisms of the restoration decision in his skeleton argument or orally.
At the beginning of the hearing, I raised this issue with the parties and asked Mr Tankel to take the court through the relevant provisions of the 1983 Act so that, if she wished to do so, Dr Sengupta would have an opportunity to contest his submission that there was no right of appeal against the restoration decision in this case. He did so and Dr Sengupta indicated that she would leave me to decide whether Mr Tankel's submission was correct. I agreed that it was.
It is also true that, apart from the fact that a Notice of Appeal rather than a judicial review claim form was submitted, in the Notice of Appeal Dr Sengupta characterises the process as an appeal and refers to her “grounds of appeal” which are then set out. However, in section 5 of her Notice of Appeal Dr Sengupta says, “I would like to appeal and or proceed towards a judicial review on the decision made by the MPTS panel on the 21st January this year”. In her “Appeal Grounds Amended” document, dated 6 March 2022, she characterises the MPT's decision as one of “indefinite erasure” and, as Mr Tankel himself points out, she then puts forward a number of arguments that the restoration decision was flawed. Her skeleton argument takes the same approach and characterises the issue before me as being “whether the claimant should be granted restoration registration (sic) and the sanction of indefinite erasure reversed”.
I asked Dr Sengupta to clarify whether she was challenging the restoration decision itself. As I understood her answer, her principal position was that she was appealing against the suspension decision on the basis that flaws in the restoration decision meant that the suspension decision was flawed because the latter was based on the former. But she also said, in answer to a question from me, that she would wish her appeal to be treated as an application for permission to claim judicial review of the restoration decision provided that this would not add to her exposure in costs.
I expressed doubts about Mr Tankel's position that I could not and should not consider or base my decision on any criticisms of the restoration decision. My provisional view was that, at the very least, Dr Sengupta was entitled to argue that the suspension decision was based on the restoration decision and that if the latter was flawed those flaw(s) undermined the former. But I also asked Mr Tankel why I should not treat the Notice of Appeal as including an application for permission to claim judicial review. He opposed this and his initial position was that his client would be unfairly prejudiced by this course because he had not come prepared to meet Dr Sengupta's arguments about the restoration decision. When I indicated scepticism about whether he would have any real difficulty in responding he agreed, on instructions, that I should hear all of the arguments and then come to an overall decision. This is what I did.
Background
Overview
Dr Sengupta obtained her primary medical qualification in India in 1988. She told me that she came to the United Kingdom in 1995 and had lived in this country since then, save for an approximately 3 year period between 2011 and 2014 when she was in India.
In March 2010 the Fitness to Practise Panel (“FtPP”) of the GMC directed the erasure of her name from the register. She made applications to the MPT for her name to be restored in 2015 and 2018, both of which were unsuccessful. Her application in 2021, which was rejected in January 2022, was therefore her third unsuccessful application.
The fitness to practise proceedings in 2010
The circumstances in which Dr Sengupta came to be before the FtPP in 2010 were, in summary, as follows.
In 2006, Dr Sengupta undertook a training programme in Obstetrics and Gynaecology in the West Midlands Deanery, in the course of which issues with her professional performance were identified. These were documented, and she was required to include that documentation as part of her personal development folder for future reference.
On 18 August 2007, Dr Sengupta applied to the West Midland Deanery for a speciality training post in Obstetrics and Gynaecology at the Birmingham Women's Health Care NHS Trust. At the second round of interviews, she presented a personal development folder which omitted documentation which referred to the performance issues which had been identified in relation to her. She admitted to the FtPP that there was an incomplete set of Objective Structured Assessments for Training, there were no 360 degree appraisals for the period 2002–2006 and no recent Record of In-training Assessment documents. There were also no educational appraisals for the period 2003–2006. The FtPP found these omissions to be dishonest and misleading.
In mid-2008, an assessment team of the GMC was directed to undertake a performance assessment of Dr Sengupta pursuant to rule 7(3) of and Schedule 1 to the General Medical Council (Fitness to Practise) Rules Order of Council 2004 (as amended) (“the Fitness to Practise Rules”). In the peer review phase of the assessment the findings were that her performance was “unacceptable” in the area of “treatment”, and a “cause for concern” in the area of “limits”. In the competence phase of the assessment the findings were that her performance in practical skills and her overall performance were “unacceptable”.
The overall conclusion of the assessment team was that her professional performance was “deficient”, albeit the standard of her performance...
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