In the case of R (on the application of Chaudhuri) v General Medical Council the High Court considered whether a public body can revisit and remake a decision it has previously made in circumstances where the public body argued that it did not have the power to do so.
Although the case concerns a decision made by the General Medical Council (GMC) in relation to a complaint regarding a doctor's fitness to practise, the broad corrective principle which it outlines will be relevant to any public body that makes a decision which is later found to have been based on a fundamental error of fact.
Background
Under the Medical Act 1983 a complaint may be made to the GMC regarding the fitness to practise of a doctor registered with it. Such complaints are dealt with in line with the GMC's Fitness to Practise (FTP) procedure as set out in General Medical Council (Fitness to Practise) Rules 2004 (the FTP Rules).
Rule 4(5) of the FTP Rules (known as the 'five year rule') states that no complaint shall proceed further if, at the time it is first made or first comes to the attention of the GMC, more than five years have elapsed since the most recent events giving rise to it, unless the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for the complaint to proceed.
A complaint was made to the GMC in July 2013 against the Claimant, Dr Chaudhuri. The complainant stated that the most recent events forming part of the complaint occurred in August 2008. An Assistant Registrar considered the complaint under Rule 4(5) and considered that it was not time barred under the five year rule. The complaint therefore proceeded to the next stage under the FTP Rules – consideration by the GMC’s Case Examiners.
At this point Dr Chaudhuri was contacted about the complaint and in his response to it he produced evidence demonstrating that the most recent event complained about had actually occurred in May 2008. He argued that the complaint was therefore time barred under the five year rule and asked the GMC to reconsider its decision to proceed with it. The GMC refused to do so and Dr Chaudhuri applied for judicial review of that refusal.
The judgment
Mr Justice Haddon-Cave summarised Dr Chaudhuri's grounds of claim under three headings –
- Error of Fact: Whether the question whether 'more than five years have elapsed since the most recent events giving rise to the allegation' is an objective question of precedent or jurisdictional fact such that the court should intervene to correct a clear and admitted error.
- Refusal to Reconsider: Whether it was unlawful for the GMC to refuse to reconsider and correct its decision that the five year rule was not engaged once it was on notice that the original decision was vitiated by a material error of fact.
- Procedural Unfairness: Whether the error into which the GMC fell was generated by procedural unfairness as it was contended that Dr Chaudhuri was not provided with a properly informed opportunity to make representations in relation to the GMC's decision. Further or alternatively, the Assistant Registrar who made the decision failed to acquaint herself adequately with the factual material relevant to her decision before concluding that Rule 4(5) was not engaged.
In the event, the court's determination of the error of fact issue was sufficient to dispose of the claim. The judge held that the language, structure and wording of Rule 4(5) indicated that it was formed of a question of precedent or jurisdictional fact (whether more than five years had elapsed before the complaint) followed by the exercise of a value judgment (whether the Registrar considered it in the public interest or appropriate given the exceptional circumstances of the case to proceed further with the complaint).
The date on which an event took place was an objectively verifiable fact, even where there was a dispute as to what had taken place during that event. As it was common ground that the true date of the last event relevant to the complaint was May 2008 rather than August 2008 it was clear that the five year rule applied and the decision should be remitted to the Registrar for consideration.
Although plainly correct, the judge's findings in regard to the construction of Rule 4(5) are relatively uninteresting in terms of wider application. The wider interest in the case comes from his remarks on the GMC's refusal to reconsider its decision which he considered in case his interpretation of Rule 4(5) was incorrect.
The GMC argued that absent express statutory provision or a court order, a statutory body has no power to reconsider previous decisions, except to correct minor slips or accidental errors which do not substantially affect the rights of the parties or the decision arrived at.
The instant case could not properly be described as falling into the category of a 'minor slip'. In the alternative, the GMC argued that should such a power indeed exist it was not unreasonable or unlawful to refuse to reconsider in this case as there were further stages in the process at which the case could be closed with no adverse finding against Dr Chaudhuri.
Although he noted that there was some conflict in the authorities as to the scope of a public authority's power to review its own decisions, Mr Justice Haddon-Cave adopted the analysis of the court in Fajemisin v. General Medical Council which had in turn followed the reasoning of the Divisional Court in Porteous v. Wess Dorset District Council in finding that a local authority had a power to revisit and rescind an earlier decision based on a fundamental mistake of fact.
The judge outlined what he referred to as a 'broad corrective principle' under which public bodies have the inherent or implied power themselves to revisit and revoke any decision vitiated by a fundamental mistake as to the underlying facts upon which the decision in question was predicated. He suggested that '[t]o suggest otherwise would be to allow process to triumph over common sense' and noted that the broad corrective principle is consonant with the principles of proportionality and utility, as well as the emerging principle of 'good administration' in administrative law.
He also noted that the broad corrective principle would naturally operate subject to the ordinary principles of fairness in administrative law, such as legitimate expectation and the rights of persons acting to their detriment in reliance upon such decisions.
In response to the GMC's submission that it was functus officio in respect of its Rule 4(5) function, the judge held that section 12(1) of the Interpretation Act 1978 applied. Section 12(1) provides that where an Act confers a power or imposes a duty it is implied, unless the contrary intention appears, that the power may be exercised, or the duty performed, 'from time to time as occasion requires'.
The GMC argued that the existence of Rule 12 of the FTP Rules, which grants express powers to review in situations other than Rule 4(5) decisions, amounted to a sufficient contrary indication for the purposes of section 12(1).
However the court held that the existence of Rule 12 did not obviate the inherent or implied power on public authorities to correct fundamental mistakes of fact or prevent the operation of the broad corrective principle it had outlined.
Finally, the court dismissed the procedural fairness point on the basis that there was no duty, at the initial stage at which the five year rule was applied, to check every factual detail of the complaint and that the Assistant Registrar had been entitled to rely on the information provided in the complaint in making the Rule 4(5) decision without asking Dr Chaudhuri for comments at that stage.
Commentary
The court in Chaudhuri took a pragmatic and realistic approach in the face of anxiety on the part of the GMC that the integrity of its FTP procedure would be undermined should the grounds of claim be made out. The judge held that there is no burdensome duty to check every fact asserted in a complaint when making a decision under Rule 4(5), but that where it later became apparent that the decision was based on an error of fact, the GMC had the ability to correct it.
The judge's remarks underline that public bodies have an inherent jurisdiction to revisit previous decisions which is not limited simply to correcting slips or minor errors which do not substantially affect the rights of the parties or the decision taken. Rather they may remake a decision where it comes to their attention that it was made on a flawed basis and require neither express statutory provision nor a court order to do so.
The broad corrective principle outlined by the court must be correct and does indeed accord with an increasing focus on good administration by public bodies.
Not only do public bodies have the power to make such corrections but the circumstances in Chaudhuri illustrate that where it is accepted that a mistake has been made, they should do so.
In his judgment Mr Justice Haddon-Cave made clear his incredulity at the argument that the GMC could not revisit a decision in circumstances where it accepted that the decision was based on a fundamental error of fact. He also made clear that '[t]here is no sense in requiring wasteful resort to the courts to correct such obvious mistakes'.
It is important to remember that the court in Chaudhuri was focused on a public body's ability to revisit a decision in a very specific instance – where that decision is based on an error of fact. Such situations can be seen as exceptions to the usual functus officio rule.
Despite the existence of section 12 of the Interpretation Act 1978, in cases concerning a power to decide questions affecting legal rights, the courts are strongly inclined to hold that a decision, once validly made, is an irrevocable legal act and cannot be revised. A public body cannot usually revisit a decision where, for example, it has second thoughts about its merits. Decision-makers should therefore strive to ensure that decisions are right first time.
However, although the judge's remarks were technically obiter, following Chaudhuri public bodies should be careful to consider whether or not to retake a decision where it is later brought to their attention that the decision was based on an error of fact. It is difficult to argue with the judge's statement that '[a]dministrative law should be based on common sense'.
That said, the fact on which this case turned was so fundamental to the decision that the outcome was relatively clear cut. Not all decisions will be based on a single determinative and objectively verifiable fact. Some facts will be more fundamental to a decision than others and the consideration as to whether or not a decision is vitiated by an error will always be case sensitive.