Two bites of the apple- limitation in professional negligence cases
When issuing a warning letter, that warning must convey to its recipient why it was considered necessary and why any factual dispute has been resolved against the practitioner.
A patient (M) of a dental practice of which the registrant was at the time the sole partner, complained to the General Dental Council about the treatment and advice she had received. The Council considered that the complaints amounted to an allegation that the registered dentist’s fitness to practise was impaired due to conduct. They summarised the allegations, which included failing to appraise M of the details of treatment and failing to discuss alternative treatment options.
The registrant provided detailed written observations, denying any allegation of misconduct and maintaining that he had fully complied with the ethical guidance. M had the opportunity to provide written comments on these observations.
On 7 May 2010 the Investigating Committee of the GDC wrote to the registrant informing him that, having considered the allegations, denials and observations, they had decided not to summons Dr Lutton to an inquiry, but to instead issue a written warning. The letter set out the registrant’s failure to communicate effectively with the patient and that he had provided her with potentially misleading information. They also set out a number of ‘warnings’ that the registrant was to bear in mind in the future, for example to ‘ensure that you undertake proper assessments of patients at all times’.
The registrant replied to this on the 21 May 1010, essentially stating that the determination lacked specification, as it did not provide him with fair notice of how he failed in his duties or to effectively communicate. Dr Lutton further complained that the Investigating Committee had not given any reasons for their conclusion. The registrant’s solicitors, on 27 May 2010 confirmed that they were seeking instructions from their client. It was necessary to obtain legal advice and to consider the position of the registrant’s defence union. An application for judicial review was made.
Before the Outer House the registrant’s pleas-in-law were twofold; that the decision of the Investigating Committee to issue a written warning was irrational or based on error and that the Committee had failed in any event to give reasons for the decision to issue the Dr Lutton with a written warning. The GDC tabled a plea or mora taciturnity and acquiescence.
On 3 June 2011, the Lord Ordinary found that the Investigating Committee’s decision was amenable to judicial review and that Dr Lutton’s challenge was not barred by mora, taciturnity and acquiescence, given that in the whole circumstances the delay ought not to be characterised as unreasonable. The Lord Ordinary also rejected an argument put forward by the Council that there was no common law duty upon them to give reasons for determinations of the kind with which the present proceedings were concerned.
Before the Court of Session, the Council argued that:
The Court held that:
The reclaiming motion was accordingly refused.
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