Fajemisin v The General Dental Council [2013] EWHC 3501 (Admin)

Case No CO/13200/2012

[2013] EWHC 3501 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 19 November 2013

Before

MR JUSTICE KEITH

Between

Femi Julius Abiodun FajemisinAppellant

The General Dental CouncilRespondent

Mr Simon Cridland (instructed by Edwards Duthie) for Appellant

Mr Mark Shaw QC (instructed by Capsticks) for Respondent

Hearing Hearing date: 22 October 2013

Judgment

Introduction

[1]This case requires the court to consider the circumstances in which a regulatory body can revisit a previous decision which it made. The appellant, Femi Fajemisin, used to practise as a dentist. Following a hearing before the Professional Conduct Committee (“the PCC”) of the respondent, the General Dental Council (“the GDC”), Mr Fajemisin’s fitness to practise as a dentist was found to be impaired as a result of his misconduct. The PCC directed that his name be removed from the dentists’ register with immediate effect. He now appeals against that decision on the ground that the PCC had no power to give such a direction since its powers to make such a direction could only be exercised in respect of a registered dentist, and he had ceased to be a registered dentist many months before when a decision to remove his name from the register had been made on other grounds. The circumstances in which that occurred are highly relevant to whether the GDC could continue to treat Mr Fajemisin as a registered dentist, and I trust that I will be forgiven for going into the facts in some detail.

The relevant facts

[2]Mr Fajemisin’s registration. Mr Fajemisin comes from Nigeria. He qualified as a dentist there. In 1980 he became a registered dentist, which is defined in section 53(1) of the Dentists Act 1984 (“the Act”) as “a person for the time being registered in the [dentists’] register”. From then on he practised as a dentist at a practice in East London.

[3]The initiation of disciplinary proceedings. In 2009, disciplinary proceedings were commenced against Mr Fajemisin in respect of allegations that he had submitted fraudulent claims for the treatment of elderly residents at nursing homes. There were also concerns about his clinical care of patients and his record-keeping. In August 2009, his name was removed from the panel of dentists eligible to undertake NHS work, and at about the same time the allegations of fraud (as well as the other concerns about the quality of his clinical care of patients and his record-keeping) were referred to the PCC. A hearing before the PCC was due to be held over 20 days in September and October 2011. In the event, only the allegations of fraud were proceeded with.

[4]The applications for voluntary removal. In May 2011, i.e. about four months before the hearing before the PCC was due to begin, Mr Fajemisin applied for his name to be voluntarily removed from the register. He said that he was ceasing to practise and was intending to return to Nigeria. The registrar refused that application on the ground that it was in the public interest that allegations of fraudulent claims “on the scale alleged” and of poor clinical treatment of elderly patients were fully investigated. That reflected the GDC’s policy of retaining on the register the name of a dentist who is subject to proceedings which call their fitness to practise into question (“fitness to practise proceedings”). I shall return to that policy later.

[5]The disciplinary hearing was due to start on 12 September 2011. That morning an adjournment was sought on Mr Fajemisin’s behalf on the basis that he had been admitted to hospital. The hearing was adjourned for a few days to see whether Mr Fajemisin would recover in sufficient time for the hearing to be resumed, but eventually the PCC accepted that it could not be resumed at that time, and it was re-listed to begin on 30 October 2012. On 15 November 2011, Mr Fajemisin again applied for voluntary removal from the register. The registrar refused that application for the same reasons as before.

[6]Continuing professional development. In the meantime, Mr Fajemisin had been required to complete his “CPD hours”. CPD stands for continuing professional development, and rules made by the GDC (“the CPD Rules”) required all registered dentists to maintain their professional standards by completing 250 hours of continuing professional development over a period of five years. Section 34A(2) of the Act provided that if it appeared to the registrar that a person had failed to comply with the requirements of the CPD Rules, the registrar “may” remove the person’s name from the register. Moreover, the CPD Rules required various notices to be given to the dentist who had failed to provide evidence of his satisfactory completion of those requirements, and rule 7(1) provided that when a dentist did not comply with a final notice requiring him or her to provide that evidence, the registrar “may” remove the dentist’s name from the register.

[7]Mr Fajemisin’s five-year cycle was from 1 January 2007 to 31 December 2011. He failed to complete his “CPD hours” in that period, and the GDC sent a number of letters to him about that at the beginning of 2012. No replies to those letters were received, including no reply to the letter dated 5 March, which constituted the final notice to Mr Fajemisin and had informed him that unless the GDC received by 4 April evidence that he had satisfied the requirements, his name “will” be removed from the register on 5 April.

[8]Shortly after 5 March, a member of staff in the registrar’s office who dealt with dentists’ compliance with the CPD Rules sent an e-mail to the department within the GDC responsible for handling issues over dentists’ fitness to practise (“the FTP team”) asking whether Mr Fajemisin (and other dentists who like him had failed to provide evidence of their satisfactory completion of their “CPD hours”) were the subject of fitness to practise proceedings. If they were, and if those proceedings had not been concluded, their names would not be removed from the register for their failure to complete their “CPD hours”, since to remove their names from the register in those circumstances would have conflicted with the policy of retaining their names on the register until the fitness to practise proceedings had been concluded. It is here that the first mistake occurred. Someone in the FTP team responded that Mr Fajemisin had been involved in such proceedings, but the case had been marked “closed”. That was wrong, of course, because the fitness to practise proceedings involving him were due to resume on 30 October.

[9]That is not to say that the correct position was not known to at least someone in the registrar’s office. The GDC’s customer and advice information officer was based in the registrar’s office. She knew that the fitness to practise proceedings involving Mr Fajemisin were continuing. We know that because on 16 March she tried unsuccessfully to get in touch with Mr Fajemisin to ensure that he was “aware of the current CPD deficit and implications”, and in the file note she made recording that she had not been able to contact Mr Fajemisin, she added that the FTP team did not want his name to be removed from the register because of the “fraud case” he was facing. Unfortunately, that file note was not brought to the attention of the member of staff in the registrar’s office who was dealing with Mr Fajemisin’s failure to complete his “CPD hours”. That was the second mistake which occurred.

[10]Mr Fajemisin did not respond to the letter of 5 March, and before a final decision was made about removing Mr Fajemisin’s name from the register (as well as the names of other dentists who had failed to complete their “CPD hours”), the member of staff in the registrar’s office who was dealing with “CPD hours” asked the FTP team to review the list of dentists who had not completed their “CPD hours” and to confirm whether their names could be removed from the register. On 13 April, the FTP team confirmed that Mr Fajemisin’s name could be removed from the register. That was the third mistake which occurred.

[11]As a result of all this, the member of staff in the registrar’s office who was dealing with Mr Fajemisin’s failure to complete his “CPD hours” was under the impression that there were no extant fitness to practise proceedings involving Mr Fajemisin. Unsurprisingly, therefore, on 13 April Mr Fajemisin was notified that the registrar had decided that his name would be removed from the register on 11 May. Mr Fajemisin was informed that he could appeal against that decision but he had to do so by 10 May. If he did, his name would not be removed from the register until his appeal had been considered. Mr Fajemisin did not appeal.

[12]Although the decision had been made to remove Mr Fajemisin’s name from the register on 11 May unless he appealed in the meantime, his name was not removed from the register on that date. Instead, a final check was made with the FTP team that day to see whether Mr Fajemisin’s name (and the names of other dentists who had not completed their “CPD hours”) could be removed from the register. The FTP team responded to that enquiry in two e-mails, one sent the same day and the other sent on 14 May, to which were attached lists of those dentists to whom the enquiry related. The list which included Mr Fajemisin’s name said that his name was not to be removed from the register. That was when the previous mistake was discovered, but it is not clear whether that information was contained in the list attached to the e-mail of 11 May or in the one attached to the e-mail of 14 May. What is plain, though, is that once the true position was known, no steps were taken to remove Mr Fajemisin’s name from the register. The register is accessible to members of the public on the GDC’s website, and the fact that his name was still on the register was therefore apparent to anyone who wanted to know what Mr Fajemisin’s status was.

[13]For some reason, Mr Fajemisin was not informed about any of this for many months. It was not until 12 September (i.e. a month before the disciplinary hearing was due to be resumed) that the registrar informed Mr Fajemisin that although he had previously been notified on 13 April that his name would be removed from the register on 11 May for failing to provide satisfactory evidence that he had completed his “CPD hours”, no further action was being taken over that for the time being since he was subject to fitness to practise proceedings. Having said that, Mr Fajemisin already knew that the disciplinary proceedings were continuing despite the letter of 13 April informing him of the decision that his name would be removed from the register on 11 May: he had, on 28 August, been sent formal notice that the resumed hearing was due to start on 30 October, and on 6 September his solicitors had written to the GDC confirming that Mr Fajemisin would be attending the hearing.

[14]The resumption of the disciplinary proceedings. Despite his solicitors’ letter, Mr Fajemisin did not attend any of the hearings which began on 30 October. Instead, on the morning of 30 October, Mr Fajemisin’s counsel argued, among other things, that since the decision had previously been made that his name would be removed from the register on 11 May, the PCC had no jurisdiction to embark on the hearing. Counsel for the GDC argued against that, and following advice from its legal adviser, the PCC ruled on 1 November that Mr Fajemisin was still a registered dentist, and that the hearing could proceed. This appeal is in effect an appeal against that ruling.

[15]Following that ruling, Mr Fajemisin’s counsel applied for the hearing to be adjourned on two grounds. Mr Fajemisin was involuntarily absent from the hearing since ill-health had forced him to return to Nigeria, and it was proposed to mount a challenge by judicial review to the ruling that the hearing should proceed. Counsel for the GDC argued against the hearing being adjourned, and following advice from its legal adviser, the PCC on 2 November refused to adjourn the hearing. It thought that the evidence relating to Mr Fajemisin’s condition contained inconsistencies and things which were not sufficiently explained, and it was therefore unable to conclude that his absence was caused by illness or was otherwise involuntary. It was not satisfied that deferring the hearing would make Mr Fajemisin’s attendance any more likely. There was a strong public interest in the hearing proceeding then, bearing in mind that a previous hearing had been lost and the allegations were serious. And it thought that it was preferable for the hearing to take its course rather than to be interrupted by a claim for judicial review since any injustice could be corrected later on by the Administrative Court.

[16]Counsel for Mr Fajemisin had informed the PCC that if the application for an adjournment of the hearing was refused, he and Mr Fajemisin’s solicitors would have to withdraw as they had no instructions on the substance of any defence. When the application for the adjournment was refused, they withdrew. The hearing proceeded on the following working day, 5 November, in the absence of Mr Fajemisin and his legal team. However, on 9 November, Mr Fajemisin’s legal team unexpectedly returned to the hearing. They re-applied for an adjournment of the hearing on the ground that Mr Fajemisin was indeed involuntarily absent from the hearing because of the state of his health. A new medical report on him was relied upon. The fresh application for an adjournment was opposed by the GDC, and following advice from its legal adviser, the PCC refused to adjourn the hearing. The new medical report was regarded as incomplete, inconsistent and unsatisfactory. That was said to have robbed it of very much weight, and there was no real assurance that Mr Fajemisin would attend an adjourned hearing at some future date.

[17]The hearing proceeded, and on 13 November the PCC found eight of the nine charges proved, including the overarching allegation of dishonesty. On the following day, it announced its findings on whether, as a result of the charges it had found proved, Mr Fajemisin’s fitness to practise was impaired on the grounds of misconduct, and what the appropriate sanction should be. It concluded that Mr Fajemisin’s behaviour had amounted to misconduct, that his misconduct had impaired his fitness to practise, and that “the only appropriate and proportionate sanction …, in order to maintain the standards of the dental profession and public confidence in it, [was] that of erasure”. It therefore directed that Mr Fajemisin’s name be removed from the register. No claim for judicial review was ever made. Instead, this appeal was brought. Although it is in effect an appeal against the ruling that Mr Fajemisin was still a registered dentist, it is in form an appeal to the High Court under section 29(1B) of the Act against the decision of the PCC directing the removal of Mr Fajemisin’s name from the register under section 27B(6)(a) of the Act.

The legal framework

[18]It is common ground that the disciplinary jurisdiction of the GDC extends only to registered dentists. That is apparent from both the Act and the General Dental Council (Fitness to Practise) Rules 2006 (“the FTP Rules”). Thus, sections 27(1) and 27(4) of the Act provide that section 27 of the Act (which relates to allegations that a person’s fitness to practise as a dentist is impaired) applies where an allegation is made “against a registered dentist”, whether the allegation is made to the GDC or not. Similarly, rule 2 of the FTP Rules defines the word “allegation” as meaning “an allegation that the fitness to practise of a registered dentist or registered dental care professionalis impaired” (emphasis added). That is why the word “respondent” is defined by rule 2 as meaning, among other things, “a registered dentist or registered dental care professional … who is the subject of an allegation” (emphasis added). It follows that if a respondent to an allegation is not registered at the time the allegation is considered by the PCC, the PCC has no jurisdiction to examine any allegation against him. That explains why the question whether Mr Fajemisin had ceased to be a registered dentist as a result of the letter of 13 April was so important.

The PCC’s reasoning

[19]Whether Mr Fajemisin had ceased to be a registered dentist depended on whether the registrar’s decision, notified to Mr Fajemisin by the letter of 13 April, that his name would be removed from the register on 11 May could be revoked. The PCC accepted that the GDC could not revoke a judicial decision it had made except under the slip rule to correct clerical errors in the making of a decision. But it concluded that(a) the registrar’s decision to remove Mr Fajemisin’s name from the register had been an administrative decision, not a judicial one, and

(b) the GDC had the power to revoke an administrative decision of that kind. As for (a), it said in paras. 27 and 28 of its ruling:

“… the hallmarks of a judicial decision are, among other things, the consideration of evidence and argument, whether oral or written, following a fair procedure, making a decision on the competing merits of the issues and giving a reasoned decision from which an appeal could be brought. Save that the Registrar was given a discretion and that her decision could be appealed by the registrant there are no characteristics of the Registrar’s function which are of a judicial nature. The Committee is unable to identify any judicial process which was undertaken in this case before the notice was issued on 13 April 2012. On the contrary a series of administrative steps were undertaken pursuant to the 2008 Rules [i.e. the CPD Rules] which led inexorably to the issue of the decision. At no stage did the Registrar appear to have weighed up the issues before deciding whether to issue the notice. Thus the Committee concluded that the decision of the Registrar was administrative in nature.”

As for (b), the GDC noted that para. 6(1) of Schedule 1 to the Act provided:

“Subject to the following provisions of this Part of this Schedule, the Council shall have power to do any thing which in their opinion is calculated to facilitate the proper discharge of their functions.”

The PCC took the view that para. 6(1) provided the GDC with the power to “correct” administrative decisions provided that the power was exercised lawfully. It must have concluded, therefore, that the decision of the registrar, notified to Mr Fajemisin by the letter of 12 September, not to take any further action on the original decision that Mr Fajemisin’s name would be removed from the register on 11 May was a lawful exercise of that power. The PCC concluded in para. 29 of its ruling:

“The Committee has also taken into account the public interest. Section 1 of the Act provides the GDC with the obligation to promote high standards of professional conduct among dentists. In exercising its functions the PCC of the GDC must also consider the public interest namely the protection of patients and the public and the maintenance of proper standards and the upholding of trust and confidence in the profession. The Committee finds that it was in the public interest that serious allegations of fraud and improper clinical treatment should be investigated and adjudicated upon and the public interest outweighs the interests of Mr Fajemisin who now seeks to hold the Registrar to a decision which was made in error.”

The PCC’s decision in Guevorkian

[20]The PCC’s decision that the registrar had been entitled not to take any further action on the original decision that Mr Fajemisin’s name would be removed from the register on 11 May did not sit easily with a previous decision of the PCC made only a couple of months earlier in the case of Andre Guevorkian. Unlike Mr Fajemisin’s case, the original decision to remove Mr Guevorkian’s name from the register was made because he had not paid the annual retention fee, and in his case his name had actually been removed from the register. So in his case it had not just been a matter of the registrar deciding not to implement the decision to remove his name from the register. The registrar had purported to restore his name to the register. But like Mr Fajemisin’s case, the registrar’s decision was made in ignorance of the fact that there were at the time fitness to practise proceedings involving Mr Guevorkian, because of an error on the part of the FTP team, and the exercise of the registrar’s power to remove the name of a dentist from the register for their failure to pay the annual retention fee was entirely at the registrar’s discretion.

[21]In the light of the authorities cited to it, the PCC concluded that the GDC’s power to revoke a previous decision was limited to the correction of slips and accidental errors which did not substantially affect the rights of the parties or the decision arrived at. It held that the original decision to remove Mr Guevorkian’s name from the register was not a slip or error of that kind: the registrar had decided to do what she had intended to do, namely to decide that Mr Guevorkian’s name should be removed from the register. Moreover, the decision was one which affected Mr Guevorkian’s rights, because it prevented him from practising dentistry in this country unless he successfully applied for the restoration of his name to the register.

[22]The PCC in Mr Fajemisin’s case thought that the ruling in Mr Guevorkian’s case could be distinguished on two grounds. First, Mr Fajemisin’s name had never been removed from the register. Secondly, the PCC had not considered the effect of para. 6(1) of Schedule 1 to the Act. But the GDC goes further than that. Its case is that the PCC’s ruling in Mr Guevorkian’s case was wrong. I shall return to that later.

The exercise of discretion

[23]An important feature of the argument advanced on Mr Fajemisin’s behalf by Mr Simon Cridland was that the member of staff in the registrar’s office who decided on 13 April that Mr Fajemisin’s name should be removed from the register on 11 May may well have known that Mr Fajemisin was still facing fitness to practise proceedings. The customer advice and information officer had known that, and had made a file note to that effect. If, therefore, it was known that the proceedings were still extant, the decision to remove Mr Fajemisin’s name from the register was an informed one, and must have involved an exercise of judgment. After all, both section 34A(2) of the Act and rule 7(1) of the CPD Rules conferred on the registrar a power to remove a dentist’s name from the register for failing to comply with the requirements of the CPD Rules, and not a duty to do so. So despite the GDC’s policy of retaining on the register the name of a dentist who is subject to fitness to practise proceedings, the registrar must have decided that the policy – assuming for this purpose that it was not a blanket policy, but one which admitted of exceptions – should be relaxed in Mr Fajemisin’s case.

[24]Mr Cridland argued that in that connection it could hardly be said that this was an inappropriate case for that exceptional course to be taken. The allegations being made in the fitness to practise proceedings related to events which had ceased as long ago as 2008. Criminal proceedings had never been begun. Mr Fajemisin had been suspended from practice for a long time. He had no intention to practise in the UK. There had been a previous abortive hearing, and if the hearing was resumed, it would take very many days to complete and involve complex factual issues for the PCC to resolve.

[25]This argument breaks down when you look at what happened after the customer advice and information officer had made her file note on 16 March. On 13 April the member of staff in the registrar’s office who was dealing with “CPD hours” sought confirmation from the FTP team that Mr Fajemisin’s name could be removed from the register. That enquiry would not have been made if it had been known that the fitness to practise proceedings were continuing. And the decision that Fajemisin’s name would be removed from the register on 11 May was made when the FTP team confirmed – albeit erroneously – that his name could be removed from the register. The decision that his name would be removed from the register on 11 May for failing to comply with the requirements of the CPD Rules was taken, therefore, because there was no reason (so it was thought) for his name not to be removed. So this was not a case of any exercise of judgment. The fact was that the decision that his name would be removed from the register on 11 May occurred because by mistake the member of staff who made the decision on behalf of the registrar was ignorant of the true facts. Indeed, that was what the PCC found. The question then was whether in those circumstances the law permitted the registrar to re-visit the decision of 13 April by deciding not to implement it.

[26]In the interests of completeness, I should say something about the GDC’s policy of retaining on the register the name of a dentist who is subject to fitness to practise proceedings, despite, for example, any application by the dentist for the voluntary removal of his or her name from the register, or his or her failure to comply with the requirements of the CPD Rules or to pay the annual retention fee. There was no evidence whether the policy was a blanket policy or one which admitted of exceptions. Mr Mark Shaw QC for the GDC told me that his instructions were that it admitted of exceptions, which was why the policy was described in the only witness statement before the PCC as a “general” one. But whether it was a blanket policy (and was therefore amenable to challenge on the basis that it amounted to an unlawful fettering of the GDC’s discretion) or one which admitted of exceptions, there was no challenge to the rationality of the policy. That is entirely understandable. I know from other cases that other regulatory bodies have a similar policy, and the rationale for it is that the practitioner’s wish to leave the profession is not the only interest in play. There is thought to be an important public interest in allegations of unfitness to practise being investigated, ventilated and determined. It helps to uphold proper standards and to promote public confidence in the profession. That is said to be particularly so in cases like that of Mr Fajemisin, where there are allegations of misconduct which are very serious because they involve the misappropriation of public funds and which have not been examined in any other public forum.

[27]These considerations were regarded by Elias J (as he then was) in R (on the application of Gibson) v General Medical Council

[2004] EWHC 2781 (Admin)

at [67]-[68] to be factors which the PCC of the General Medical Council was entitled to take into account when refusing a doctor’s applications for a stay of fitness to practise proceedings against him and for the voluntary removal of his name from the medical register. Indeed, since the decision of the PCC in the present case, the Professional Standards Authority for Health and Social Care has issued a report on the topic (“Lapses in Professional Registration: Impact, Issues, and Ideas for Improvement”, August 2013). It cautions against registration being allowed to lapse if the effect of that is to prevent fitness to practise proceedings from continuing: see paras. 2.19-2.23 and 5.37.

The relevant authorities

[28]I come, then, to the critical question in the case. Can a regulatory body revoke a decision it made if by mistake that decision was made in ignorance of the true facts? Mr Cridland argued that the authorities show that a public body’s power to re-visit a decision it previously made is very limited indeed. In Akewushola v Secretary of State for the Home Department

[2000] 1 WLR 2295

, the Secretary of State had refused to grant the appellant leave to enter this country. Her appeal to an adjudicator was dismissed, but she was granted leave to appeal to the Immigration Appeal Tribunal. Before the date fixed for the hearing of the appeal, her representatives applied to the tribunal for the hearing to be adjourned. As a result of an administrative error, the tribunal was not informed of that. Neither she nor her representatives attended the hearing, even though the application for an adjournment had not been granted. It had not even been considered, of course, but the appellant and her representatives were not to know that. The tribunal proceeded to hear the appeal in her absence. It dismissed the appeal. When the error it had made came to the tribunal’s notice some time later, the tribunal purported to revoke its previous determination dismissing the appeal. The question for the Court of Appeal was whether it had had the power to do that.

[29]In a judgment with which the other members of the court agreed, Sedley LJ said that the tribunal had not had the power to revoke its previous determination. There was a narrow basis on which that view was reached which turned on the Immigration Appeals (Procedure) Rules 1984. But Sedley LJ nevertheless addressed the wider question whether a tribunal can revoke its own decision in the absence of an express or an implied power to do so. He noted that there was a provision in the rules which enabled the tribunal to cure any irregularity before it reached its decision, but he added at p. 2301A that once the decision had been reached, “the maximum power must be to correct accidental errors which do not substantially affect the rights of the parties or the decision arrived at”.

[30]Sedley LJ then referred to a passage in Wade & Forsyth, Administrative Law, 7th ed. (1994), p.262 which had been cited to him. Having instanced cases where the power to re-visit its earlier decision had been expressly conferred on a tribunal, the authors continued:

“Even where such powers are not conferred, it is possible that statutory tribunals would have power, as has the High Court, to correct accidental mistakes; to set aside judgments obtained by fraud; and to review a decision where facts subsequently discovered have revealed a miscarriage of justice.”

There is an identical passage in the latest edition – 10th ed. (2009), p. 194. But Sedley LJ did not go along with that, because he went on to say at p. 2301D-E that he did not think that “slips apart, a statutory tribunal – in contrast to a superior court – ordinarily possesses any inherent power to rescind or review its own decisions”. The use of the word “ordinarily” suggests that Sedley LJ thought that there may be situations other than the need to correct accidental errors where a tribunal could re-visit its previous decision, but he did not say what they might be, and he went on to say:

“Except where the High Court’s jurisdiction is unequivocally excluded by [de]privative legislation, it is there that the power of correction resides.”

And he continued at p. 2301G-H, “[i]f something has gone procedurally wrong which is capable of having affected the outcome, it is to the High Court – if necessary on a consensual application – that recourse must be had”. In short, Sedley LJ was saying, I think, that a tribunal’s power to re-visit a previous decision was limited to cases analogous to the slip rule in rule 40.12 of the Civil Procedure Rules. The fact that the tribunal proceeded to determine the appeal in ignorance of the true facts as a result of an administrative error was not something which was capable of being corrected by something akin to the slip rule.

[31]Akewushola was considered in R (on the application of Jenkinson) v The Nursing and Midwifery Council

[2009] EWHC 1111 (Admin)

. A nurse whose name the PCC of the Nursing and Midwifery Council (“the NMC”) had ordered to be removed from the register of qualified nurses asked the NMC to remove from the register any reference to her after her conviction on which the removal of her name from the register had been based had been quashed by the Court of Appeal. That request was refused on the basis that the original decision was not a slip of the kind envisaged in Akewushola. The nurse’s claim for judicial review of the refusal of her request was supported by the NMC. Cranston J quashed the refusal of her request. He said at [25] that the original decision “… was founded on a mistake, namely that the claimant was guilty of a criminal offence. Once that conviction had been quashed, the finding in respect of the misconduct and the sanction fell away. There is no room, as it were, for speculation or uncertainty as to what the outcome would have been had the Court of Appeal’s decision been available after the Council’s proceedings had been initiated, but before the hearing.”

[32]That led Cranston J to conclude that the power to correct or revoke a previous decision arises when the decision resulted in a miscarriage of justice. Cranston J thought that the case he was dealing with was an example of that. However, it has to be said that Cranston J read Sedley LJ in Akewushola as having approved the passage from Wade & Forsyth which he cited, and it was that, coupled with the use of the word “ordinarily” by Sedley LJ, which caused Cranston J to conclude at [27] that “in cases of slips, accidental mistakes or miscarriages of justice … the council can act in a corrective fashion”. I understand entirely Cranston J’s reliance on Sedley LJ’s use of the word “ordinarily”, but I do not think that Sedley LJ was approving the passage from Wade & Forsyth which he cited. On the contrary, Sedley LJ was saying that ordinarily the only circumstance in which a tribunal can re-visit a previous decision it made was in the case of an accidental error. I note that Lang J came to the same conclusion in a more recent case which addressed whether a public body can re-visit a previous decision it made – R (on the application of B) v The Nursing and Midwifery Council

[2012] EWCA 1264

(Admin) – at [39].

[33]In B, the investigating committee of the NMC decided that a nurse who had worked in a care home at which residents were said to have been mistreated or neglected had no case to answer on an allegation which had been referred to it. The police expressed concern that the investigating committee had come to that decision without seeking disclosure of all the relevant documents and without waiting for the Crown Prosecution Service to decide whether the nurse should be prosecuted. The Crown Prosecution Service decided in due course that there was insufficient evidence for the nurse to be prosecuted, but the NMC remained concerned about the investigating committee’s decision. It thought that the investigating committee had applied the wrong legal test. Moreover, the NMC had previously overlooked other allegations which had been made about the nurse, and it referred those allegations to the investigating committee. In these circumstances, the investigating committee addressed the question whether it should set aside its previous decision. The investigating committee’s reading of the authorities cited in Jenkinson was that it could set aside a previous decision it had made where there had been a slip or accidental error. It concluded that its previous decision revealed errors in its application of the test as to whether the nurse had had a case to answer, and that those errors amounted to a slip or accidental error. It therefore set aside the previous decision.

[34]Lang J concluded that the investigating committee had not had the power to set aside its previous decision. Her reasoning was encapsulated at [38] as follows:

“… the IC’s first decision, though clumsily expressed, was a legitimate finding that there were systemic failures in the way in which the care home was run and therefore there was no realistic prospect of a finding of impairment of fitness to practise on the part of the Claimant. This was an exercise of judgment on the part of the panel. Although the exercise of judgment may have been flawed, it cannot properly be characterised as a ‘slip’ (as the second IC panel described it). In my judgment, slips are ‘accidental errors which do not substantially affect the rights of the parties or the decision arrived at’ (per Sedley LJ in Akewushola). Nor can it be characterised as a ‘miscarriage of justice’ or a decision which was so obviously mistaken that there is now ‘no room for speculation or uncertainty’ as to the appropriate outcome (as in Jenkinson).”

[35]Lang J went on to deal in [39] with Cranston J’s view of what Sedley LJ had meant in Akewushola. She said:

“Furthermore, I respectfully differ from Cranston J in his interpretation of Sedley LJ’s judgment in Akewushola. I do not agree that Sedley LJ approved the passage in Wade & Forsyth which suggests that tribunals have inherent powers to rescind their own decisions, in certain circumstances, by analogy with the High Court. On my reading of the judgment, I consider that Sedley LJ was limiting the powers of tribunals to the correction of accidental slips. In my judgment, the correct course is to follow Akewushola not Jenkinson.”

That rather suggests that when in [38] Lang J referred to the investigating committee’s decision that the nurse did not have a case to answer as one which could not be characterised as a “miscarriage of justice” or one which was so obviously mistaken that there is now “no room for speculation or uncertainty” as to the appropriate outcome, she was not saying that decisions could be re-visited in those circumstances. She was saying that even if they could be re-visited in those circumstances, the investigating committee’s decision did not come within those circumstances.

[36]It is not possible to shoehorn the decision of 13 April that Mr Fajemisin’s name would be removed from the register on 11 May into the category of decisions to which the slip rule applies. It was in truth no different from what happened in Akewushola. In both cases, a decision was made in ignorance of the true facts as a result of administrative errors, and in both cases the mistakes substantially affected the decisions arrived at. Indeed, in Mr Fajemisin’s case, but for the mistake, the opposite decision would have been reached. If the tribunal could not re-visit the decision to dismiss the appellant’s appeal in Akewushola, the registrar could not re-visit the decision that Mr Fajemisin’s name would be removed from the register on 11 May, unless there was some other principle in play here.

[37]In my opinion, there was. It is to be found in the decision of the Court of Appeal in Porteous v West Dorset District Council

[2004] HLR 30

. The appellant had applied to the local housing authority to be housed as a homeless person. The authority decided that she was homeless in ignorance of the fact that she was the tenant of a property in another part of the country which was available to her. She had mistakenly thought that her tenancy of the property had been transferred to her sister. When it discovered the true position, the authority withdrew its earlier decision. In a judgment with which the other member of the court agreed, Mantell LJ said that it would be surprising if the original decision could not be changed even though it had resulted from “a fundamental mistake of fact”. If the original decision could be changed if it had been brought about by fraud, such as the deliberate non-disclosure of relevant facts, why not for fundamental mistake? If “fraud unravels all”, why should fundamental mistake not do so as well? The resulting harm would be no greater in one case than the other. Accordingly, it was held that the authority had been entitled to withdraw its earlier decision. Although Mantell LJ did not refer to Akewushola in his judgment (presumably because it was not cited to the court), Porteous is authority for the proposition that, in addition to cases in which a public body can re-visit a previous decision under the equivalent of the slip rule, a public body can re-visit a decision which was made in ignorance of the true facts when the factual basis on which it had proceeded amounted to a fundamental mistake of fact.

The application of Porteous to the present case

[38]The similarities between the present case and Porteous are striking. Both cases involved decisions being made in ignorance of the true facts. The local housing authority’s lack of knowledge of the true facts arose as a result of the appellant’s mistaken belief that the tenancy had been transferred to her sister, in the same way as the registrar’s lack of knowledge of the true facts arose as a result of inaccurate information provided by the FTP team and the fact that the file note had not been brought to her attention. In both cases, the decision would have been the very opposite of what it had been if the true facts had been known. Indeed, it could be said that if the authority could revoke its previous decision in Porteous, all the more so for the registrar to have had the power to revoke the decision that Mr Fajemisin’s name would be removed from the register on 11 May. No suggestion has ever been made of bad faith on the part of the registrar, though such a suggestion was made of the appellant in Porteous. And the decision which was re-visited in Porteous had included the exercise of judgment, namely whether the appellant had been intentionally homeless, whereas no such exercise of judgment was involved in the case of Mr Fajemisin. In these circumstances, I have concluded that the registrar had the power to re-visit her decision that Mr Fajemisin’s name would be removed from the register on 11 May.

[39]This outcome does not result in any injustice to anyone. It is true that Mr Fajemisin was not told until 12 September that the GDC had not implemented the decision to remove his name from the register and was not proposing to, but it is not as if he thought that the fitness to practice proceedings were not going ahead. He had not appreciated that the removal of his name from the register, had it been implemented, would have resulted in the fitness to practise proceedings being discontinued. Otherwise, his solicitor would not have informed the GDC on 6 September that he would be attending the hearing. It was only after that that his legal team appreciated that the fitness to practice proceedings had to be discontinued if he had ceased to be a registered dentist, and the PCC was only informed about the point to which this appeal relates a week or so before the hearing commenced. If the appeal were to succeed, Mr Fajemisin’s opportunistic reliance on a windfall of which he was the unintended beneficiary and of which he was unaware for much of the time would have been unjustly rewarded.

Miscellaneous matters

[40]I ought to deal briefly with a number of other matters. First, in the light of what I have already said, a public body’s power to re-visit a decision does not depend on some supposed distinction between a judicial decision and an administrative one. If there is a distinction to be made, it is between a decision which involves the exercise of judgment and one which does not. Secondly, even if para. 6(1) of Schedule 1 to the Act provided the GDC with the power to “correct” what it described as “administrative” decisions, the PCC itself acknowledged that it could only do so if that was a power which could be exercised lawfully. That begged the very question which the case raises: could such a power be exercised lawfully? Thirdly, there is no basis for distinguishing Mr Fajemisin’s case from that of Mr Guevorkian. If the registrar had the power to re-visit her decision that Mr Fajemisin’s name would be removed from the register on 11 May, she should have been held to have had the power to re-visit her decision to remove Mr Guevorkian’s name from the register.

[41]Next, there is the fact that the decision that Mr Fajemisin’s name would be removed from the register on 11 May was never implemented. Could it therefore be said that the registrar was not re-visiting her original decision at all? She was simply deciding that she would not be implementing it for the time being. That argument would have had to fail. The registrar decided not simply that Mr Fajemisin’s name would be removed from the register. The decision she made was to remove his name from the register on 11 May. By not implementing the decision for the time being, the registrar was re-visiting the original decision about when Mr Fajemisin’s name would be removed from the register.

[42]Finally, the uninformed observer might be asking what the fuss has been all about. Mr Fajemisin wanted his name to be removed from the register, and the fitness to practise proceedings has ended with that happening. Leaving aside the considerations which underlie the GDC’s policy of retaining on the register the name of a dentist who is subject to fitness to practise proceedings, the answer is that there are different consequences for the dentist if he or she is removed from the register following fitness to practise proceedings, compared with the consequences for the dentist if he or she is voluntarily removed from the register or removed because of a failure to comply with the CPD Rules. In the former case, the dentist cannot apply for his or her name to be restored to the register for five years. Such an application has to be referred to the PCC. And even if the application is granted, the PCC can impose conditions on practice for up to three years. By contrast, a dentist whose name is voluntarily removed from the register or is removed for a failure to comply with the CPD Rules has a much easier path to having his or her name restored to the register. They are not subject to any quarantine period, and are entitled to be restored to the register if certain conditions are satisfied.

Conclusion

[43]For these reasons, Mr Fajemisin’s appeal must be dismissed. I wish to spare the parties the trouble and expense of attending court when this judgment is handed down, and I leave it to them to see if they can agree an appropriate order for costs in the light of this judgment. If they cannot, they should notify my clerk of that within 14 days of the handing down of this judgment, and I will decide what the order for costs should be without a hearing on the basis of such written representations as are made. If Mr Fajemisin wishes to apply for permission to appeal, his solicitors should notify my clerk of that within 7 days of the handing down of this judgment, and I will consider that question as well without a hearing on the basis of such written representations as are made. However, any appellant’s notice will still have to be filed within 21 days of the handing down of this judgment.