Double Success in GMC Appeal for James Counsell QC

In a judgment handed down by Warby J on 22 July, James Counsell QC was successful in an appeal and in a judicial review against the GMC in disciplinary proceedings brought against a cosmetic surgeon, Dr Ashish Dutta, arising out of allegations which went back to 2009.

The judgment in R (on the application of Dr Ashish Dutta) v the General Medical Council [2020] EWHC 1974 (Admin) can be found here.

In the Judicial Review claim, the Judge held that the GMC Registrar had acted unlawfully in failing to apply the five-year rule which prevents proceedings being brought if more than five years have elapsed between the “most recent events  giving rise to the allegation” and the date when they come to the attention of the GMC. He rejected the GMC contention that the allegations formed part of a course of treatment bringing them within that five-year period and was critical of the GMC for failing to provide the doctor with a copy of the Registrar’s decision until three days before a four-week fitness to practise hearing before the Medical Practitioners’ Tribunal in October and November 2019 (paragraph 78):

“More compelling is Mr Counsell’s criticism of the GMC’s own lack of candour, in failing to disclose the Five-Year-Decision until more than three years after it was made, when put under pressure to do so. I remain unclear what good practical or policy reason there may have been for that reticence. The GMC has not offered an explanation. The mere fact that the rules do not require it does not seem to be sufficient. It is unbecoming of a public authority to criticise the subject of its decision for delay in divining the existence of and/or the reasoning behind an undisclosed decision.”

Dr Dutta was also successful in his statutory appeal in overturning an allegation that he put financial pressure on a patient to have cosmetic surgery by offering her a discount if she would have it within a week.  The Judge held that the findings made against him by the Tribunal were “procedurally flawed and untenable”.

The case was remitted to a differently constituted tribunal for reconsideration of impairment of fitness to practise and, if appropriate. sanction.

Find Out More

James Counsell QC is a leading professional disciplinary and regulatory Silk. He is frequently instructed (by all the principal defence organisations (including MPS, MDU, MDDUS) to represent doctors and dentists at the General Medical Council (the MPTS) and General Dental Council. His work has involved the full range of misconduct and heath cases, including clinical malpractice, dishonesty, sexual misconduct and health/addiction-related cases and he regularly conducts appeals in the Administrative Court.

To find out more, contact Graham Woods or Chris Rowe on +44 (0)20 7353 6381 for a confidential discussion.

News 24 Jul, 2020