R Dr Anup Chaudhuri v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Haddon-Cave |
| Judgment Date | 29 July 2015 |
| Neutral Citation | [2015] EWHC 6621 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 July 2015 |
| Docket Number | Case No: CO/635/2015 |
[2015] EWHC 6621 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
BETWEEN:
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Haddon-Cave
Case No: CO/635/2015
Robert Kellar (instructed by Radcliffes Le Brasseur Solicitors) for the Claimant
Catherine Callaghan (instructed by General Medical Council In House Legal Team) for the Defendant
Hearing dates: 9th/10th July 2015
INTRODUCTION
This case concerns the application of Rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004 (known as the 'five year rule'):
"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 the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for it to proceed"
The Claimant, Dr Chaudhuri, challenges the Defendant GMC's failure to apply the five-year rule in his case, and the GMC's subsequent refusal to revisit its initial decision when it was pointed out that the decision was based on a factual error (see the correspondence dated 31 st July 2014, 21 st October 2014 and 18 th December 2014).
The case arises in the context of the GMC's Fitness to Practise ("FTP") procedure. The issues in this case are three-fold. First, whether, and in what circumstances, the five-year rule is engaged. Second, whether and in what circumstances, the GMC may revisit a decision taken under Rule 4(5). Third, whether the procedure adopted by the GMC in this case was unfair.
THE FACTS
The Claimant, Dr Chaudhuri, is a general practitioner, aged 70. He is currently the subject of two separate investigations by the GMC arising from complaints on behalf of a patient (who shall be referred to as "MV") regarding treatment in 2008 and 2013. The present judicial review proceedings concern only the allegation relating to 2008.
MV complained of a sub-mandibular swelling and was attended by Dr Chaudhuri on three occasions in 2008: on 2 nd April, 7 th April and 22 nd May 2008. On 2 nd April 2008, Dr Chaudhuri noted that MV had no problem swallowing, no sore throat and had never smoked tobacco and prescribed antibiotics ( Erythromycin). On 7 th April 2008, MV telephoned the surgery because he had lost his prescription and was complaining of diarrhoea and was advised to drink plenty of water. On 22 nd May 2008, Dr Chaudhuri noted that MV's right sub-mandibular gland was palpable, but the patient was not tender and asymptomatic and simply gave MV reassurance. He also prescribed emollient cream and Hydrocortisone and Miconazole ointment for an itchy rash "in axilla Left thigh, eczema rash". It is common ground that MV was not seen again by Dr Chaudhuri in 2008.
In 2009, MV was seen by head and neck surgeons and his throat and larynx initially assessed as normal. However, he was subsequently diagnosed with cancer at the base of his tongue. He underwent chemotherapy and radiotherapy treatment for the cancer which was successful.
On 26 th July 2013, the GMC received a complaint from a relative of MV (who shall be referred to as "JM") which stated as follows:
"Complaint details
2 April 2008 went to Dr Chaudhuri with large neck lump – antibiotics given. Second and third visit in June and August with neck lump antibiotics given. (3 visits over 10 months with neck lump) Saw Locum GP with neck lump who urgently referred him to ENT consultant, Stage 2 tongue cancer diagnosed. …" (emphasis added)
It should be noted that the complaint lodged by JM stated the dates of the 2008 consultations with Dr Chaudhuri incorrectly as "2 April 2008… June and August 2008".
On 30 th July 2013, the appointed Assistant Registrar at the GMC, Ms Shepherd ("the Assistant Registrar"), examined the complaint under Rule 4. She concluded that rule 4(5) was not engaged. She subsequently made the following note of the reasons for her decision:
"Allegation reasoning – The complainant alleges: April – August 2008 – Dr. Chaudhuri repeatedly treated a lump on the patient's neck with antibiotics. On returning the practice for the fourth time the patient saw a locum doctor who made an urgent referral to ENT. The patient was subsequently diagnosed with Stage 2 cancer of the tongue".
On 29 th August 2013, the GMC wrote to Dr Chaudhuri notifying him that a complaint had been lodged against him in respect of patient MV and providing a copy of the index complaint and inviting him to comment. At this stage, however, Dr Chaudhuri was not told that there had been any consideration under Rule 4(5).
On 10 th October 2013, the GMC received copies of MV's medical records. The records showed that the latest consultation had been on 22 nd May 2008, i.e. more than five years before the index complaint was lodged (5 years 2 months). The case nevertheless progressed and an expert's report by a Dr Tidy was produced on 2 nd April 2014 and was served on Dr Chaudhuri on 23 rd April 2014.
On 12 th June 2014, the Assistant Registrar of the GMC served Dr Chaudhuri with a letter under Rule 7 of the 2004 Rules, formally notifying him of the allegations now under consideration and giving him a further opportunity to comment before the matter was considered by the Case Examiners. The letter stated that separate allegations arose in relation to the consultations on "2 nd April 2008" and "26 th June 2013".
On 2 nd, 8 th and 10 th July 2014, Dr Chaudhuri's solicitors, Radcliffes LeBrassaeur, wrote to the GMC seeking a copy of the Assistant Registrar's decision under Rule 4(5) in relation to the 2008 allegations. On 31 st July 2014, the GMC confirmed that the basis of Ms Shepherd's decision as Assistant Registrar was that, on the basis of the allegation put forward by JM on 26 th July 2013, "…the most recent event took place in August 2008, meaning that [JM] made her complaint within 5 years (4 years 11 months)".
On 1 st September 2014, Dr Chaudhuri's solicitors drew attention to the factual error in Ms Shepard's decision and invited the GMC to reconsider the Assistant Registrar's decision:
"… Dr. Chaudhuri's last clinical encounter with the patient in the relevant period was not in August 2008. That reflects an error on the part of the complainant. The last appointment with Dr. Chaudhuri in the relevant period was on 22 May 2008. It was therefore outside the 5 year period and not within it…"
On 21 st October 2014 and 18 th December 2014, the GMC confirmed that it was not prepared to revisit the Assistant Registrar's decision under Rule 4(5) and gave the following reasons:
"At the time the allegation was received by the GMC, the Registrar correctly determined that the five-year rule was not engaged. The complaint was received on 26 July 2013, and it was stated that the last attendance by the patient with Dr. Chaudhuri was August 2008. This is within the 5 year period. The Registrar therefore determined to refer the allegations to the Case Examiners for a decision under Rule 4 (2)."
On 15 th January 2015, Dr Chaudhuri's solicitors issued a pre-action letter. On 10 th February 2015, these judicial review proceedings were issued on behalf of the Claimant.
THE LAW
The 2004 Rules
The full text of Rule 4 of the 2004 Rules reads as follows:
" Initial consideration of referral of allegations
4. (1) An allegation shall initially be considered by the Registrar.
(2) Subject to [paragraphs (3) to (5)] and rule 5, where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under rule 8.
[(2A) Where the Registrar considers that an allegation does not fall within section 35C(2) of the Act the Registrar must notify the maker of the allegation (if any) accordingly.]
(3) Where–
[…]
(b) in the case of an allegation falling within paragraph (5), the Registrar does not consider it to be in the public interest for the allegation to proceed; or
(c) the Registrar considers that an allegation should not proceed on grounds that it is vexatious,
he shall notify the practitioner and the maker of the allegation (if any) accordingly.
(4) The Registrar may, before deciding whether to refer an allegation, carry out any investigations as in his opinion are appropriate to the consideration of–
(a) whether or not the allegation falls within section 35C(2) of the Act;
(b) the practitioner's fitness to practise; or
(c) the matters outlined within paragraph (5) below.
(5) 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 the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for it to proceed.
Rule 7 provides as follows:
" Investigation of allegations
(1) As soon as is reasonably practicable after referral of an allegation for consideration under rule 8, the Registrar shall write to the practitioner—
(a) informing him of the allegation and stating the matters which appear to raise a question as to whether his fitness to practise is impaired;
(b) providing him with copies of any documents received by the General Council in support of the allegation;
(c) inviting him to respond to the allegation with written...
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