High Court quashes decision made by the Assistant Registrar of the General Medical Council on a case proceeding outside the five-year time limit and determines that it should be reconsidered.

Judgement date: 18 December 2013

The Claimant, Dr John Grabinar, made an application for judicial review to quash a decision the General Medical Council (GMC) made through its Assistant Registrar on 20 November 2012 to waive the five-year time limit on an investigation into fitness to practice as per Rule 4(5) of the General Medical Council Fitness to Practice Rules.

Background

Dr Grabinar was a registered medical practitioner who was part of a practice operating in South West London between 1996 and 2003, according to his pre-action protocol letter. Between 1996 and 1999, Dr Grabinar appeared to be the senior practice partner or at least one of the senior partners in the Practice. At some point before September 1996, Dr Grabinar, along with another doctor at the Practice, were made aware of an allegation of inappropriate touching to a child by another doctor at the Practice, Dr Ragupathy. The alleged incident was said to have occurred on 2 July 1996. Subsequently, Dr Grabinar was made aware of further written complaints by adult female patients of inappropriate sexual touching by Dr Ragupathy on 1 October 1997 and 3 June 1999. It was also apparent that other allegations of sexual misconduct were reported to other doctors or members of the staff at the Practice from 1999 to 2010.

In June 2007, following a patient complaint to the police about a sexual assault by Dr Ragupathy, a criminal investigation was commenced. Dr Ragupathy was acquitted in March 2008. As a result of the police investigation, the local Primary Care Trust (PCT) commissioned an investigation. During the PCT investigation, in January 2010, another patient complained to the police about a sexual assault by Dr Ragupathy. This resulted in a further criminal investigation, which led to Dr Ragupathy’s conviction of nine sexual offences in April 2012. Dr Ragupathy was sentenced to two years imprisonment with ancillary orders.

It appears that the PCT informed the GMC of the allegations made against Dr Ragupathy in June 2010. The GMC was invited by the PCT to waive the five-year rule in that particular case, which it subsequently did.

The PCT investigation, which concluded on 6 December 2010, raised several criticism of the conduct of other doctors at the Practice for failing to properly investigate the complaints made against Dr Ragupathy or report the allegations of sexual misconduct to the PCT, at least until 2007. The criticisms were made of all doctors at the Practice without distinguishing differing levels of responsibility or culpability, and without any reference to when the doctors were members of the Practice.

The PCT wrote to inform Dr Grabinar of the outcome of their investigation on 28 June 2012. Subsequently, on 13 August 2012, the PCT wrote to Dr Grabinar  to inform him of their concerns that the professional colleagues of Dr Ragupathy, including Dr Grabinar may have failed in their professional obligations to act quickly to protect the patients from risk. Notably, Dr Grabinar was never provided with the PCT investigation report or the particulars of the dates of failures by him.

The PCT also wrote to the GMC expressing their concerns on the same date, 13 August 2012. The GMC responded on 5 September 2012 with reference to Rule 4(5), the ‘five-year rule’. The PCT, in their response on 26 September 2012, submitted that the GMC had waived the five-year rule against Dr Ragupathy in June 2010 and invited the GMC to do the same for the other practitioners at the Practice, including Dr Grabinar. Their arguments were:

  1. There was a significant delay between the incident occurring and the PCT becoming aware of the complaints.
  2. The delay in the PCT learning of the complaints was the subject of the referral to the GMC.
  3. The PCT had been informed by the police in June 2011 that if regulatory proceedings were pursued against Dr Ragupathy prior to the conclusion of the criminal prosecution, there was a real prospect that the regulatory proceedings may prejudice the criminal prosecution. As such, the PCT had put their own procedures on hold, and the delay in making the referral to the GMC occurred because the PCT was aiming to reduce the potential for prejudice to the criminal prosecution of Dr Ragupathy.
  4. he allegation of non-reporting was particularly serious.

The Deputy Registrar of the GMC made the decision on 20 November 2012 to waive the five-year time limit. It should be noted that the decision was made without reference to any further information from the PCT, any detailed witness statements, and without seeking any observations from Dr Grabinar. The latter point is particularly relevant since if Dr Grabinar had left the Practice in 2003 as he claimed, he may not have been aware of, and would not have been responsible as a member of the Practice for any response to any complaints or allegations after that date, including the allegations which led to police investigations in 2007 and 2010. Dr Calit who prepared the investigation report was critical of the PCT’s failure to investigate an allegation that was reported to them in 2005. It appeared that the Deputy Registrar, in making his decision was aware that the PCT’s reasons for not reporting Dr Grabinar and his colleagues to the GMC were flawed because if there was to be any delay to avoid prejudice, that was a matter for the GMC to manage once the concerns had been reported to them rather than a reason to prevent the PCT reporting the concerns in the first instance.

Judgement

The parties were agreed that the Deputy Registrar’s decision was procedurally flawed and should be quashed. Blake J, in making his judgement, made the following comments:

  1. The police had only requested that the PCT not jeopardise the criminal prosecution of Dr Ragupathy by proceeding with the investigation into his sexual misconduct. Prejudice to Dr Ragupathy’s criminal prosecution would not have been caused by reporting Dr Grabinar and his colleagues to the GMC for failing to investigate since the guilt or innocent of Dr Ragupathy was wholly irrelevant to the allegations of alleged failure of professional duty by Dr Grabinar and his colleagues.
  2. The PCT reported Dr Ragupathy to the GMC in June 2010, but subsequently relied upon prejudice to the investigation as a reason for the delay in reporting Dr Grabinar and his colleague two years later.

It was held that:

  1. If Dr Grabinar’s responsibility was primarily as a member of the Practice and he left the practice at some point in 2003, the period of delay between the last relevant act as a member of the Practice and the referral to the GMC in August 2012 was longer than the two months extension that the Deputy Registrar thought was required above the five-year rule, and it would have actually been closer to four years.
  2. Clarity needed to be sought as to when Dr Grabinar left the Practice, and under what terms and degree of knowledge, so that the degree of alleged culpability in failing to investigate and report the matter to the PCT or GMC was clear, which was relevant in the assessment of the weight to be attached to the public interest.
  3. The illogical reasons given by the PCT for the delay in reporting Dr Grabinar to the GMC were capable of being important factors against waivers of the five-year rule.
  4. One of the reasons given by the Deputy Registrar appeared to concern the potential seriousness of the conduct involving suppression of information in a policy inquiry and failure to co-operate with the inquiry. Since Dr  Grabinar asserted that he left the Practice in 2003 and before any police inquiry had been commenced then none of these matters could have been weighed into the public interest part of the test as to whether the five-year rule should be waived. Dr Grabinar had in fact provided a witness statement to the PCT in 2010, and was apparently called as a witness in the trial of Dr Ragupathy.

Justice Blake quashed the decision that had been made by the Deputy Registrar in so far that it related to Dr Grabinar and indicated that the matter should be reconsidered. Justice Blake was satisfied that Deputy Registrar must make a reconsidered decision and deemed it was not a decision that the High Court could exercise for itself. Justice Blake held that, “[22] it might have been open to the court in an appropriate case, either to refuse to remit to the Registrar or to issue mandamus directing a particular outcome of a decision, but such exercise of jurisdiction could only be made where there was only one outcome available to a properly self-directing Registrar”.

Justice Blake then went on to consider the issue of fairness. He was clear that in a case where the core facts were not determined it would be inconceivable for the High Court to exercise such judgement and that such a decision would have to take into account the GMC aide memoire guidance on Rule 4. Blake J held, “[23] fairness requires that this claimant have all the information upon which the Deputy Registrar may act when applying the structure test commenced in the aide memoire”. In considering this point, Justice Blake was clear that the GMC should make any material that it held available to Dr Grabinar, and that he should have the opportunity to make representations to respond before a decision was made.

Both parties had agreed a schedule of matters that the GMC accepted it would have to take into account, to which the Court was agreed provided they were read in light of the judgement. Justice Blake, therefore, proposed:

  1. To quash the decision.
  2. To remit it for reconsideration by the GMC in accordance with the judgement and the agreed schedule.
  3. For the reconsideration to take place in a structured manner which would allow any further disclosure to be made to Dr Grabinar and for him to make any representations.

This case serves as a reminder that where a consideration is to be made as to whether to waive the five year rule it is critical in the interests of fairness that the decision maker has availed himself of all relevant facts and that the Registrant be given an opportunity to comment on the totality of that information. The decision must also be fully and properly reasoned.