The E-Regulator: Herrera Gilthorpe v General Medical Council [2012] EWHC 672 (Admin)

5 April 2012

02 February 2012

The court has no power to extend time to lodge an appeal beyond the period set out in a statute, however harsh that may be.

Dr Herrera-Gilthorpe (H) appealed against the decision of the General Medical Council’s Fitness to Practise Panel (the Panel) made on 11 October 2011 to suspend his registration for 4 months. The Panel had found proved allegations relating to his acting dishonestly in working simultaneously for two healthcare providers.

H was sent a notice containing an explanation of his right to appeal, the time for lodging the appeal and where the appropriate forms could be obtained. H acknowledged receipt of this notice. 

H made an attempt to file a claim for judicial review of the Panel’s decision between 7 and 9 November 2011, however sought to withdraw that application when informed that it was the wrong procedure to use. The GMC was not served with any application. On 10 November 2011 the GMC wrote to H informing him that in the absence of any appeal the order would take effect from 9 November. On 15 November H filed a Notice of Appeal in the High Court. 

It was submitted on behalf of the GMC that H failed to lodge a valid appeal in time and that the court therefore had no power to hear the appeal and must dismiss it and that, in any event, the appeal was without merit. H argued that the fact that he submitted a judicial review claim and not a statutory Notice of Appeal should not be held against him because a) it was not clear to him that this was required and b) he was advised that that was the appropriate course by solicitors. 

The learned Judge was referred to and followed the decisions of the court in R (Dr Harrison) v GMC [2011] EWHC 1741 (Admin) and Mitchell v Nursing and Midwifery Council [2009] EWHC 1045 (Admin) and to the decision of the House of Lords in Mucelli v Government of Albania [2009] 1 WLR 276.  This case law clearly states that, however unsatisfactory it may be given that there may well be circumstances in which there is good reason for extending an appeal, there is no jurisdiction for the court to do so.  The learned Judge duly found that ‘however harsh it may be, the court has no power to extend time for lodging the Appeal Notice in this case’. 

It was noted that, ‘nevertheless, so as to avoid any misunderstanding in the future, I consider it would be sensible for the GMC to state expressly in the notes that the appeal is under CPR Part 52 and not by way of judicial review’It was held that even if the court had jurisdiction to extend time, this would not have been appropriate in this case as there was seemingly no merit in the grounds of appeal as advanced by H; the Panel were entitled to find that he had acted dishonestly and to suspend him from the Register, having had proper regard to all mitigating factors.

In relation to costs, it was found that even though the GMC were entitled to their costs in this matter, it would be reduced to 25%. This was because if they had brought the decision of Harrison to the attention of H when his Notice of Appeal was filed on 15 November, the costs of the day’s hearing may have been saved or if H had pursued his appeal, he could have been put on notice that he was at risk as to costs.

This case encourages regulators to make explicit in their notes appended to notification the correct route of appeal.  Further, it highlights the wisdom of drawing important legal information such as cases determinative of the appeal to the Registrant’s attention at the earliest opportunity.

Sarah Harris

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