Lasting Powers of Attorney: recent key developments
High Court considers the circumstances in which a regulatory body can revisit a previous decision.
At a hearing before the Professional Conduct Committee (PCC) of the General Dental Council (GDC) which concluded in October 2012, Femi 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.
Mr Fajemisin appealed this decision on the ground that the PCC had no power to give such a direction since he had ceased to be a registered dentist before the hearing when a decision to remove his name from the register had been made on other grounds.
In May 2011, Mr Fajemisin applied for his name to be voluntarily removed from the register. The registrar refused that application on the ground that it was in the public interest that allegations which had been made against Mr Fajemisin were fully investigated. These included allegations that he had submitted fraudulent claims for the treatment of elderly residents at nursing homes. That approach reflected the GDC's policy of retaining on the register the name of a dentist who is subject to fitness to practise proceedings.
The PCC hearing was due to start on 12 September 2011. That morning an adjournment was granted on the basis that Mr Fajemisin had been admitted to hospital. On 15 November 2011, before the hearing was reconvened, Mr Fajemisin again applied for voluntary removal from the register. The registrar refused that application for the same reasons as before.
In the meantime, Mr Fajemisin had been required to complete his continuing professional development (CPD) hours (250 hours over five years). Under the Dentists Act 1984, if a registrant fails to complete these hours the registrar may remove their name from the register.
Mr Fajemisin failed to complete his CPD hours in the period 1 January 2007 to 31 December 2011 and the GDC sent letters to him about that at the beginning of 2012 regarding this omission. No replies to those letters were received.
In March 2012, a member of staff in the Registrar's office 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 was the subject of fitness to practise proceedings. If he was, and if those proceedings had not been concluded, his name would not be removed from the register for his failure to complete his CPD hours because of the policy of retaining names on the register in these circumstances.
However, due to a series of mistakes/oversights, 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. 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. The registrar decided to remove Mr Fajemisin’s name from the register on 11 May. However, this decision was then not implemented as the mistake in terms of the extant proceedings was discovered.
Mr Fajemisin was not informed about this for many months. On 12 September 2012, 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, no further action was being taken over that for the time being since he was subject to fitness to practise proceedings. (Mr Fajemisin already knew that the proceedings were continuing despite the letter of 13 April because he had received 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.)
The hearing resumed on 30 October 2012. Mr Fajemisin did not attend but his counsel argued on his behalf, 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 the PCC ruled on 1 November that Mr Fajemisin was still a registered dentist, and that the hearing could proceed.
An appeal was lodged in relation to the decision of the PCC directing the removal of Mr Fajemisin's name from the register.
The legal framework
The wording of the General Dental Council (Fitness to Practise) Rules 2006 (the FTP Rules) and the Dentists Act make it clear that an allegation of impaired fitness to practise can only be made against a registered dentist or dental care professional. Therefore, 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 the allegation.
The PCC's reasoning
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 under para. 6(1) of Schedule 1 to the Dentists Act.
Mr Justice Keith described the critical question in the case as being “Can a regulatory body revoke a decision it made if by mistake that decision was made in ignorance of the true facts?” Mr Justice Keith stated that it was 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. A decision was made in ignorance of the true facts as a result of administrative errors, and the mistake substantially affected the decision arrived at. Indeed, but for the mistake, the opposite decision would have been reached.
Mr Justice Keith referred to the decision of the Court of Appeal in Porteous v West Dorset District Council  HLR 30. In this case it was 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”. 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.
In these circumstances, Mr Justice Keith 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.
It was noted that this outcome would not result in any injustice to anyone: Mr Fajemisin 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. “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.”
For these reasons, Mr Fajemisin's appeal was dismissed.
This case establishes that 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.
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