R Dr Ashish Dutta v General Medical Council

Hearing dates: 10–11 June 2020

Approved Judgment

This is the consolidated hearing of two related cases: (1) a judicial review claim (“the Claim”) by Dr Ashish Dutta (“Dr Dutta”) against the General Medical Council (“GMC”) in respect of a decision of August 2016, to refer certain allegations for investigation; and (2) an appeal by Dr Dutta (“the Appeal”) against a decision to suspend him from practice made by a Medical Practitioners Tribunal (“Tribunal”) after a hearing in 2019. The GMC is the respondent to the Appeal.

I. The background

Dr Dutta trained and qualified as a cosmetic surgeon. At the relevant times he was practising as such, and he still is practising, at clinics in Newcastle, Sunderland and London.

This case arises from allegations that Dr Dutta was guilty of misconduct in his professional dealings with four patients, between 2009 and 2015. On 11 April 2009, he performed a breast augmentation operation on a woman referred to as “Patient A” (“the Augmentation Operation”). There was a follow up scan in August 2010. Patient A was then referred to another surgeon, “Dr B”, who carried out two further operations on her. In 2014, Patient A complained to Dr Dutta about Dr B, alleging that he had indecently assaulted her. In 2015, Dr Dutta performed a series of seven procedures on “Patient C”, two gynaecomastia procedures on “Patient D”, and one operation on “Patient E”.

The GMC is a body corporate on which Parliament has conferred regulatory functions in respect of medical practitioners, with the over-arching objective of protecting the public. Its functions and powers are defined and governed, so far as relevant, by the Medical Act 1983 (“the Act”) sections 1 and 35C, and by the General Medical Council (Fitness to Practise) Rules Order of Council 2004 (“the Rules”).

The scheme created by the Act and the Rules, so far as relevant to this case, can be shortly summarised.

(1) If an allegation is made to the GMC that a registered practitioner's fitness is impaired by reason of misconduct it is investigated. The process is governed by Part 2 of the Rules.

(2) The initial stage is consideration by the Registrar, who determines whether the allegation is one of misconduct within the meaning of s 35C(2) of the Act. In order to make that determination, the Registrar may carry out investigations. If the Registrar considers that the allegation does fall within s 35C(2) then, subject to some exceptions, the allegation must be referred for investigation. The exception relevant to this case is a time-bar, commonly known as the “5-year rule”, contained in Rule 4(5).

(3) If an allegation is referred, the Registrar must write to the practitioner, giving notice of the allegation and giving him an opportunity to respond.

(4) The allegation is then considered by Case Examiners. They may refer the case to the GMC's Medical Practitioners Tribunal Service (“MPTS”), or to the GMC's Investigation Committee, which may itself refer the allegation to the MPTS. The MPTS then puts the matter before a Tribunal.

(5) The procedure before the Tribunal is governed by Part 4 of the Rules. The standard of proof is the ordinary civil standard.

Key features of the pre-Tribunal procedure followed in this case, so far as relevant, are these:

(1) In September 2014, there was a conversation between a police officer and a GMC official (“the 2014 Conversation”). The police had spoken to Patient A in the context of an investigation into the conduct of Dr B. They told the GMC of some things that Patient A had said about Dr Dutta.

(2) In November 2015, the GMC opened an internal investigation into Dr Dutta's fitness to practise. This followed a referral from an inspector of the Care Quality Commission (“CQC”), which reported concerns about Dr Dutta's conduct towards and/or record-keeping in respect of Patients C, D and E.

(3) On 16 November 2015, Patient A made a witness statement (“the 2015 Statement”). This was in connection with a Fitness to Practise process relating to Dr B, but the statement made reference to Dr Dutta. He was not accused of any improper assault, but the patient made a number of allegations about Dr Dutta's qualifications, his medical treatment of Patient A, and his response to her complaints about the behaviour of Dr B.

(4) Some of these allegations related to events in 2009 (“the 2009 Allegations”). In summary, they were a failure to provide appropriate advice prior to the Augmentation Operation; offering a financial incentive to have that operation swiftly; mishandling the operation; and then telling her there was nothing wrong. There was also an allegation (“the 2010 Allegation”) that, when the 2010 Scan was carried out, Dr Dutta falsely reported that it showed nothing wrong, even though the radiologist told her that both breasts were full of infected fluids and the implants needed immediate removal.

(5) In June 2016, an internal triage request was made, to enable the GMC to consider Patient A's allegations about Dr Dutta. The request was evidently granted.

(6) On 18 August 2016, an Assistant Registrar of the GMC (“AR”), acting under delegated powers, reviewed allegations about Dr Dutta's conduct in respect of Patients A, C, D and E, and made a decision under Rule 4 on whether to refer all or any of them for investigation. The decision (“the Referral Decision”) was to refer all but one of them. In the process, a decision had to be made as to whether the 5-year rule applied to the 2009 Allegations (“the Five-Year Decision”). Having taken legal advice, the AR proceeded on the footing that the 5-year rule was not engaged. As will be seen, this was essentially on the basis that the 2010 Scan was part of the same course of treatment as the Augmentation Operation, and the 2014 Conversation was within 5 years of that.

(7) On 24 November 2016, Dr Dutta was notified of the Referral Decision, and sent a copy of the 2015 Statement. Dr Dutta was not told of the 2014 Conversation, nor of the Five-Year Decision. The Rules do not require the Registrar to notify the practitioner of such a decision, unless it is to the effect that the 5-year rule does apply, so that allegations should not go forward for investigation. An investigation ensued.

(8) On 8 February 2019, the Case Examiners completed a report setting out their reasons for deciding to refer Dr Dutta's case to the MPTS. The Case Examiners referred the 2009 Allegations. But they did not refer the 2010 Allegation. They had consulted an expert. He had examined the ultrasound report from the 2010 Scan, which provided no support for that allegation. The expert described Dr Dutta's care at that stage as “adequate and appropriate”.

(9) On 15 February 2019, Dr Dutta was told of the Case Examiners' decision. This was done by letter which enclosed the Case Examiners' report and an Annex A, setting out 23 allegations of misconduct. The case that was, in due course, put before the Tribunal was in substantially the same terms as Annex A. Dr Dutta was not told at this stage about the Five-Year Decision or the 2014 Conversation.

(10) On 12 September 2019, after his solicitors had made enquiries, Dr Dutta was told about the Five-Year Decision and the 2014 Conversation. The written decision itself was disclosed on Wednesday 23 October 2019. That was 2 working days before the Tribunal hearing was due to start.

(11) Dr Dutta threatened to apply to the Tribunal to strike out the 2009 Allegations on the grounds of a breach of Rule 4(5). The GMC responded by pointing to the decision of this Court in R (Lee) v General Medical Council [2015] EWHC 135 (Admin) [2016] 4 WLR 34 (Haddon-Cave J), that only the Registrar has jurisdiction to make a decision on the 5-year rule. Dr Dutta's legal team did not pursue the application to strike out, nor did they apply to adjourn to enable them to challenge the Five-Year Decision by way of judicial review.

The hearing before the Tribunal occupied 17 days between 28 October 2019 and 20 November 2019. It is convenient to refer to the 23 allegations as “charges”. In summary:-

(1) Eight of the charges related to Patient A. Charges 1 to 6 reflected the 2009 Allegations. Charges 7 and 8 related to events on and after 14 July 2014.

(2) Eight charges (nos. 9–16) related to the procedures carried out on Patient C, and the alleged failures of recording in respect of those procedures.

(3) Two charges (nos. 17 & 18) related to Patient D, consisting of failures to make records in respect of the two procedures of 2015.

(4) Four charges (nos. 19–22) related to Patient E.

(5) One charge (no. 23) alleged that Dr Dutta carried out the procedures on Patients C, D and E in a room which was inadequate in various respects.

By the end of the factual stage of the proceedings, the ambit of the dispute had reduced. Dr Dutta had made admissions in relation to some of the allegations, some had been withdrawn, and others were dismissed after a successful submission of no case to answer. The matters that remained for decision were, in summary:-

(1) Whether, in 2009, Dr Dutta:

a. inappropriately pressurised Patient A to undergo breast augmentation surgery by offering her a discount, for financial motives [ Charges 1(a) and 2] (“the Discount Charges”);

b. failed to obtain adequate informed consent to the surgery [ Charge 3(a)]; and

c. falsely told Patient A that he would not be using PIP implants...