Sufficiency of directions in cases involving delay and prejudicial material: Dutta v GMC [2024] EWHC (Admin) 1217
Dutta is a well-known name in professional discipline. In this more recent Dutta the High Court upheld certain grounds of appeal in relation to facts found by the MPT and remitted the matter back. However, the High Court rejected grounds which related to delay and the admissibility of evidence.
There were two complainants and there had been a delay of four years in relation to one complaint and four and half years in relation to the other. After it was conceded that COVID must have played some part in the delay and that no application to stay the proceedings as an abuse of process had been made, it was argued that the LQC had not given a sufficiently robust direction on the impact of delay. In fact, the LQC had specifically directed that the MPT should bear in mind the effect of the passage of time on witnesses’ memories in that recollections can fade or become confused. It was submitted that the LQC should have gone further and directed the MPT to look at each individual allegation and the extent to which it was or was not supported by contemporaneous records and/or other evidence.
The High Court held that Dr Dutta had not identified any particular evidence or witness lost as a consequence of the delay. There was no specific prejudice over and above the potential degradation of witnesses’ memories, with which the LQC had dealt. The effect of delay applied to witnesses called by both sides. No application had been made to stay the proceedings and both parties had addressed the issue in written submissions.
At first glance, this part of the ruling appears to downplay the significance of Dutta v GMC [2020] EWHC 1974, in particular the emphasis given in that case to contemporaneous documentary evidence. However, it is apparent that what influenced the High Court in this case was the inability of Dr Dutta to point to specific examples of where the documentary and oral evidence were significantly at variance. What this case demonstrates is that directions on delay (and other issues) should not be given mechanistically but rather should be tailored to the particular facts.
As to the admissibility of evidence, the Case Examiners withdrew allegations 1 – 5 very shortly before the case began but after the bundles had been uploaded for the MPT to read. It was submitted that as a result the MPT had read a large volume of prejudicial material to which Dr Dutta would have been prevented from responding on the grounds of relevance. Further, the evidence gave the impression that Dr Dutta was incompetent or even unqualified to perform certain procedures to the extent that patients were put at risk of harm; that he was responsible for two clinics that were dangerous and unsafe; and, amongst other allegations, that he had withheld material from his regulator and had been dishonest with a patient and the CQC.
It was submitted that it would have been impossible for the MPT to ignore this material and that no direction had been given in relation to it. No application had been made to exclude the material by trial counsel, who did not appear at the appeal. It was argued that any such application or any application to adjourn in order to redact the material would have merely highlighted its significance. An adjournment would have also led to delay in circumstances where Dr Dutta was subject to IOT conditions.
The High Court rejected this argument. No objection was taken at the time. Dr Dutta had not identified any part of the findings that had been influenced by the material. In R (Mahfouz) v the Professional Conduct Committee of the General Medical Council [2004] EWCA Civ 233 the Court of Appeal had held that the law’s response to the problem of a tribunal’s knowledge of matters adverse to a complainant will vary depending on the nature and experience of the tribunal concerned and there was no absolute rule that knowledge of such material is fatal to the fairness of the proceedings. In this case there was a LQC and a specifically trained panel. It can be assumed that judges and tribunals know how to do their job. No reference had been made in either parties’ submissions to allegations 1 – 5, which in any event were of a wholly different nature to the allegations being considered. There was nothing in the questions asked by the MPT or in the determination that showed the MPT had been influenced by the material. Further, some of the material, whilst prejudicial, was relevant to the background of the case and gave context to certain issues. Therefore, there was no need for a separate direction.
The High Court concluded that in essence this ground of appeal was simply a disagreement with how the previous legal team had conducted the case and that there was no sense in which their decisions could be said to be “wrong”.
If there is a point of general principle, then it is that professional disciplinary tribunals with an LQC can be expected, as a result of their training, to be able to recognise and ignore irrelevant and prejudicial material. It is not enough to point to the possibility of unconscious bias. However, there are tribunals that do not have an LQC but rather sit with a legal assessor. In those circumstances, it may still be safer for the legal assessor briefly to direct the tribunal as to what material it should have regard to and the relevance of any material to context or background that may on its face be prejudicial.
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