A word of caution on mutually exclusive charges

Rahim v General Medical Council [2022] EWHC 137 (Admin)

In Rahim Mr Justice Freeman dismissed Dr Rahim’s appeal from the Medical Practitioners Tribunal Service (the Tribunal) on all grounds. The first ground of appeal was a serious procedural irregularity in that additional charges relied on by the GMC were mutually exclusive of the primary charges.

The GMC’s primary case before the Tribunal was that Dr Rahim had made the wrong diagnosis and had dishonestly attempted to cover that up. Dr Rahim had failed to send Patient A for a chest x-ray and then attempted to cover up her failure, by dishonestly amending the records. Dr Rahim’s case was the amendments were not to mislead, but to correct her own record. The GMC amended the charges upon receipt of Dr Rahim’s witness statement to further allege that if Dr Rahim’s account was true, then she had failed to make an adequate record of the consultation.

Mr Justice Freedman found that it would have been better if the charges had been expressed to be alternatives, which only arose in the event that there had not been guilt found in respect of the graver charges of dishonesty and the clinical failures identified. Justice Freedman stated: “In that event, it might have been that the admission would not have been accepted at all.” [34]

However, Justice Freedman said that; “the nature of the alternative pleas was stated in clear terms…” [34]. It was determined that there was; “no breach of natural justice because it was obvious from the start that the extra charges were lesser charges if the primary case failed” [36]. It was held that if the primary charges had not been found, it did not necessarily mean that the lesser charges had been proved.

Dr Rahim relied upon five further grounds of appeal, relating to disclosure, cross-examination of the expert, the wrong approach of the Tribunal in determining the amendments of the records before the clinical allegations and wrong assessment of the facts. Justice Freedman stated: “The decision of the Tribunal was not wrong nor was there a serious procedural irregularity or any injustice thereby” [88]. The appeal was dismissed on all grounds.

Comment

The case is a helpful example of where a regulator relies on mutual charges which reflect a primary and secondary case. It is a reminder to ensure that any alternative charges are not mutually exclusive, which would cause prejudice to the registrant.