High Court quashes decision of Assistant Registrar of the General Medical Council to waive the ‘five year rule’.

Judgement date: 23 September 2013

Background

D qualified as a doctor in 1982 and, since 1999, has practised as a consultant obstetrician and gynaecologist.

In 1990, D was the subject of a complaint to the police, lodged by his wife (M), that he had touched his 15 year old step-daughter (X) in a sexually inappropriate manner. At the time D and M were in the midst of an acrimonious divorce. The allegations were investigated by the relevant local police child protection unit and social service, following which, the officer responsible for investigating the allegations concluded that the allegation was ‘malicious’. It was decided that the allegations were not substantiated and no further action would be taken. The relevant Health Authority decided not to refer the 1990 allegations against D to the GMC.

In 2011, over 20 years later, D was the subject of a fresh allegation. D’s ex-wife M had laid a further complaint, namely that her two year-old granddaughter had made a comment that might suggest inappropriate touching had taken place by her grandfather, D. M informed her son, the child’s father, who told the NSPCC. This allegation was subject to a multi-agency investigation by police and social services, the conclusion being that on the balance of probabilities the concerns were not substantiated. 

D’s medical employer had come to hear of the more recent allegation and referred the matter to the GMC. On 9 June 2011, D was informed of the GMC’s investigation. On 15 June 2011 the GMC was informed by the Police that the case against D had been closed with no further action. On 15 July 2011 the GMC’s Registrar decided that it was necessary to undertake further investigations before making a final decision as to the progress or otherwise of the complaint.

On 2 August 2011 the GMC’s solicitor interviewed X about the 1990 allegations. She gave a very detailed account of sexual abuse by D against her as a child which occurred between 1985 and 1990 when she was aged between 10 and 15. On 23 September 2011 the Assistant Registrar of the GMC made his decision waiving the ‘five-year rule’ under Rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004. On 24 September 2012 D was informed that a decision had been made to refer his case to the GMC’s Fitness to Practise Panel under Rule 8 of the rules. The GMC stated that the only allegations which would be referred would be the 1990 allegations; but that the 2011 allegation would not be pursued due to insufficient evidence.

The Law

Rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004 provides that no allegation shall proceed further if, at the time it is first made or first comes to the attention of the GMC, more than 5 years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is ‘in the public interest, in the exceptional circumstances of the case, for it to proceed’.

The GMC issued guidance on the approach to be taken by the GMC Registrar when making decisions under Rule 4(5), the latest version of the guidance being issued in May 2010.  The following principles were derived from the guidance and the authorities by the Court:

  1. The ‘five-year rule’ provides a ‘distinct and freestanding safeguard which sets a general prohibition against the pursuit of long delayed complaints’.  It provides only for very limited, i.e. ‘exceptional‘ circumstances in which such complaints may proceed.
  2. It is not appropriate to either water down or reword the Rule 4(5) test; the Registrar must be satisfied that there are circumstances of the case which can fairly be described as ‘exceptional circumstances’.
  3. Although a reasonable amount of time should be allowed to pursue complaints the policy underlying Rule 4(5) is that practitioners should not be pursued by stale complaints.
  4. The Registrar’s decision must identify the public interest and the exceptional circumstances pertinent to the particular allegations under consideration.

The Assistant Registrar’s Decision

The Assistant Registrar gave his reasons for his decision waiving the ‘five-year rule’ on 23 September 2011. Having set out Rule 4(5) and summarising the relevant background the Registrar correctly set out guidance on the meaning of exceptional. The Registrar addressed each of the 8 factors which are to be considered before concluding as follows:

“taking all the above matters into consideration it is clear to me, given the nature and gravity of the alleged events which are alleged to have taken place over a significant period of time, that there is a public interest in this allegation being investigated by the GMC, that public interest being an order to promote public safety and maintain public confidence in the medical profession. That would have been my view even had this been the only allegation against D. However, this is not the only such allegation against D and the fact that a similar allegation has now been made to the GMC strengthens my belief that it is in the public interest in exceptional circumstances of the case for the five year rule to be waived in order that an investigation into the complaint regarding D alleging inappropriate touching of step-daughter (X) may be carried out by the GMC”

As a result of that decision the GMC then proceeded with their investigation.

Grounds of Challenge

It was submitted on behalf of D that the Assistant Registrar’s reasoning and the decision of 23 September 2011 was flawed because the Assistant Registrar had failed properly to understand or apply the guidance criteria in relation to “exceptional circumstances”. Counsel for the GMC submitted that the decision was lawful and rational and took into account the relevant considerations.

Analysis

It was the decision of the Court that the Assistant Registrar’s decision to waive the ‘five-year rule’ was “fundamentally flawed” [29].  It was held that;

  1. Firstly the Assistant Registrar failed to have regard to the true reason why the original police investigation in 1990 resulted in no further action being taken. In the view of the Court the Registrar had ‘mischaracterised’  the position. The Assistant Registrar appears to have overlooked the 1990 Investigation Officer’s basic view of the case, namely that X’s allegations were “malicious”.  [30-32]
  2. Secondly, the Assistant Registrar failed to have regard to the fact that the 1990 allegations were not only fully investigated (i.e. ventilated) by the Police and Social Services at the time, but they could have been further ventilated at the time if the relevant medical authorities had wished to, but a positive decision was taken not to refer them. [33]
  3. The Assistant Registrar failed to appreciate the significance of the outcome of the joint Police and Social Services investigation in April 2011 that the allegations were “not substantiated”.

It was the judgment of the Court that for each of these three reasons the decision of the Assistant Registrar was “plainly wrong and must be quashed”.

In fact it was held by the Court that the present case represented a “paradigm case” for the application of the ‘fiver-year rule’, involving as it does stale 21 year old allegations which had been thoroughly investigated by the Police and Social Services at the time and found to be without foundation.  Accordingly the decision made by the Assistant Registrar was quashed.

Whilst on its face a decision on its facts as to how the GMC should interpret its own time-barring provision, it is a useful guide for practitioners as to the factors to bear in mind when considering whether and when it is appropriate for a regulator to investigate ‘stale’ allegations.