D, R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin)

Case No 13285/12[2013] EWHC 2839 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/09/2013
Before
MR JUSTICE HADDON-CAVE
Between
R (on the application of D)ClaimantTHE GENERAL MEDICAL COUNCILDefendant
Robert Kellar (instructed by Medical Defence Union) for ClaimantDavid Pievsky (instructed by GMC Legal) for DefendantHearing Hearing date: 18 th July 2013
JudgmentMR JUSTICE HADDON-CAVE:INTRODUCTION
[1]This case is subject to an anonymisation order pursuant to CPR 39.2 (4) and the Court’s inherent jurisdiction. The Claimant doctor is referred to as “D”. The complainant is referred to as “X” and her mother “M”.[2]The Claimant D challenges a decision made by the Assistant Registrar of the General Medical Council (“GMC”) on 23rd September 2011 (“the Decision”) to waive the “five year rule” under Rule 4(5) of the General Medical Council (Fitness to Practice) Rules 2004 (“the Rules”) and refer allegations involving sexual misconduct by D with a child (X) to the GMC’s case examiners, notwithstanding that they related to matters more than five years old. The GMC’s case examiners subsequently determined that there was a realistic prospect of a finding that D’s fitness to practise was impaired.[3]D lodged judicial review proceedings on 11th December 2012. Permission was granted on 18th January 2013 and the disciplinary proceedings stayed pending the outcome of this claim for judicial review.

THE FACTS

[4]D qualified as a doctor in 1982. He has been a consultant obstetrician and gynaecologist since 1999.

The 1990 Allegations

[5]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, child X, in a sexually inappropriate manner. At the time, D and M were in the course of an acrimonious divorce and a dispute over the residence of the children.[6]The allegations against D were investigated by the relevant local police child protection unit and social services. A detailed investigation appears to have been carried out. The ‘Case Progress Form’ of the Child Protection Unit records that the following interviews and examinations took place:(i) an interview with M on 4th October 1990;(ii) an interview by a police officer and a social worker with child X on 4th October 1990;(iii) a second interview by a police officer and a social worker with child X on 24th October 1990;(iv) an interview with D on 3rd November 1990; and(v) a medical examination of child X on 8 November 1990.[7]The officers responsible for investigating the allegations are recorded as finding as follows: child X was unable or unwilling to elaborate any specific acts of inappropriate touching; child X was extremely open to suggestion and, unless asked anything leading, was unable to explain how the alleged inappropriate touching had taken place; and the medical examination was of no assistance either way. The officers concluded that the allegation was “malicious”. They stated in the Case Progress Form:
“Opinion [D] is a genuine person, who appears to be telling the truth. I am of the opinion that the allegation is malicious and the ‘touching’ has in fact not happened I have interviewed [V]. She also appears to be a nice genuine person, who confirmed what her husband said about [X]. She said that as an outsider looking in, she could see that [X] can be quite vindictive, creating trouble between [X’s brother] and her own daughter [Y]. [V] said that [X] is a sad and unhappy child, and since her Dad had seen through her, X has lost her ally. [V] feels sorry for [X].”
[8]On 10th December 1990, a Child Protection Conference concluded that the allegations were not substantiated and no further action be taken: “At the conference it was reported that the allegation occurred in the context of a continuing dispute with regard to residence of children and [X’s] recent discovery that [D] was not her father. It appears that, under these circumstances, and taking into account the reluctance of both [X] and her mother to co-operate with the investigation, the conference concluded that the allegations were not substantiated and no further action could be taken”.[9]On 23rd January 1991, the police communicated to M and X that no further police action would be taken. The Case Progress Form Reports that “[X] is now unwilling to discuss the allegation”. The police separately visited D on the same date to communicate the outcome of the police and social services investigation.

Health Authority aware by 1995

[10]It is clear that, by 1995 at the latest, the relevant Health Authority responsible for D’s employment had become aware of the index allegations. On 6th June 1995, the Principal Officer for Child Protection in the relevant Social Services department wrote to the Medical Personnel Officer for the relevant Regional Health Authority about the outcome of the case conference regarding the allegations against D made in December 1990. This letter referred to ‘previous discussions’ between their offices about the matter. The Principal Officer for Child Protection enclosed a summary of the information held about the case on file and explained that he had discussed the material with D who had agreed to a copy being sent to directly to the relevant Regional Health Authority. The letter stated as follows: “The nature of [D’s] occupation was clearly known at the time of the conference, as was the fact that there were children living in the household. As no action was taken in relation to either of these circumstances, it would appear that it was not considered that there were any significant implications ensuing from the conference findings”.[11]It is understood that the relevant Regional Health Authority decided not to refer the 1990 allegations against D to the GMC.

The 2011 allegation

[12]Over 21 years later, D was the subject of a fresh allegation. On 27th April 2011, the Medical Director at the Health Board responsible for D’s employment, wrote to the GMC, confirming a conversation that he had had with a person at the GMC’s Advice Line. He stated that his understanding was that a 3-year-old child had mentioned “to a number of adults” about being touched or tickled in the genital region by the Claimant, D. D’s son then notified the NSPCC. It transpired that it was D’s ex-wife, M, who had laid the complaint, alleged that whilst changing her two year-old granddaughter’s nappy, her granddaughter had been overheard to say:
“Grandad tickled me there”
. M informed her son, the child’s father, who told the NSPCC.[13]The allegation was again subject to a multi-agency investigation by police and social services. Interviews with M and X and family members took place, including other children. D was also interviewed. It then emerged that X had previously made allegations of inappropriate touching by D in 1990 when she was a child which had been reported to Salford Social Services.[14]On 11th April 2011, the Child Protection Coordinator, notified D of the outcome of the joint investigation as follows:
“A thorough joint police and social services investigation took place which concluded on 6 April 2011. The findings of these enquiries were reported to the meeting and evaluated which, on the balance of probability, did not find the allegation to be one of abuse and therefore the concerns are not substantiated.”

Referral to GMC – May 2011

[15]On 10th May 2011, D’s medical employer, which had come to hear of the recent allegation, referred the matter to the GMC. The Health Board was, initially, unsure whether a referral was appropriate given the outcome of the police and social service investigations. However, the Medical Director sought advice from the GMC and was advised that a referral was appropriate. The significance of a referral for D’s career was recognised.[16]On 9th June 2011, D was informed of the GMC’s investigation. On 15th June 2011, the GMC was informed by the Police that the case against D had been closed with no further action. On 15th July 2011, the GMC’s Registrar decided that it was necessary to undertake further investigations before making a final decision under the “five-year rule”. On 2nd 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 10 to 15 years old. On 16th September 2011, the Police provided the GMC with copies of the documents in their possession relating to the 1990 investigation, including the Case Progress Form. On 23rd September 2011 the Assistant Registrar of the GMC made his decision waiving the “five-year rule” under Rule 4(5) of the Rules. I set out his reasons out below.[17]On 19th October 2011 the GMC wrote to D notifying him of the GMC’s ongoing investigation and stating: “[W]e have not yet made a decision on the concerns… we now intend to proceed as quickly as possible to establish whether there is any evidence to support the allegations and will disclose this to you as and when obtain it”.[18]The GMC obtained formal witness statements from M and X relating to the 1990 allegations, which were signed on 31st January 2012 and 18th March 2012 respectively. On 24th September 2012, D was informed that a decision had been made to refer his case to the GMC’s Fitness to Practice Panel (“FTPP”) under Rule 8 of the Rules. The GMC stated that the only allegations which would be referred would be the 1990 allegations; but the 2011 allegation would not be pursued due to insufficient evidence. THE LAW Rule 4 (5)

THE LAW

[19]Rule 4 of the General Medical Council (Fitness to Practise) Rules 2004, provides as follows (emphasis added):
“4.— Initial consideration and referral of allegations (1) An allegation shall initially be considered by the Registrar. (2) Subject to paragraph (5) and rule 5, where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under rule 8. (3) Where– (a) the Registrar considers that an allegation does not fall within section 35C(2) of the Act; (b) in the case of an allegation falling within paragraph (5), the Registrar does not consider it to be in the public interest for the allegation to proceed; or (c) the Registrar considers that an allegation should not proceed on grounds that it is vexatious, he shall notify the practitioner and the maker of the allegation (if any) accordingly. (4) The Registrar may, before deciding whether to refer an allegation, carry out any investigations as in his opinion are appropriate to the consideration of– (a) whether or not the allegation falls within section 35C(2) of the Act; (b) the practitioner's fitness to practise; or (c) the matters outlined within paragraph (5) below. (5) No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five 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.”

GMC Guidance as to the application of the “five-year rule”

[20]The GMC issued Guidance in April 2005 and January 2009 on the approach to be taken GMC Registrar when making decisions under rule 4 (5) of the Rules, i.e. the “five-year rule”. The latest version of the Guidance was issued in May 2010 and is headed “Aide Memoire”. The Guidance requires a focus “not on private interests but on the public interest”. It lists eight factors which are “typically” relevant when considering whether the circumstances are exceptional:(1) The extent of the lapse of time (beyond five years).(2) The reason(s) for the lapse of time.(3) The extent to which relevant evidence is no longer available due to the lapse of time.(4) The gravity of the allegations.(5) The number of incidents alleged: a pattern of misconduct or a single episode.(6) The extent of any continuing unwarranted risk to the public and/or to public confidence in the medical profession.(7) The extent to which the allegation has been ventilated before other public/ adjudicatory bodies and the practitioner’s employer.(8) Whether the allegation raises an important, new and/or developing point of practice principle or law.[21]The Guidance states the question for decision-makers to ask is as follows:
“Giving the various relevant factors the weight considered appropriate, is it “in the public interest, in the exceptional circumstances of the case, for it to proceed?””
.

Principles

[22]The following principles can be derived from the Guidance and the authorities:(1) The “five-year rule” provides “a distinct and free-standing 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. In the event of a wrong decision there is no satisfactory remedy later in the proceedings (see Gibbs J in Peacock v. The General Medical Council [2007] EWHC 585 (Admin)).(2) It is not appropriate to either water down, or re-word, 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” and that proceeding with the case is in the public interest, in those exceptional circumstances (see Sullivan J in Gwynn v. The General Medical Council [2007] EWHC 3145 (Admin)).(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. Rule 4 (5) therefore applies a prohibition subject to a narrowly drawn exception (Guidance, paragraph 13).(4) The Registrar’s decision must identify the public interest and the exceptional circumstances pertinent to the particular allegations under consideration (Guidance, paragraph 15 and footnote 52; Gwynn, (supra)).

ASSISTANT REGISTRAR’S DECISION

[23]The Assistant Registrar’s Reasons for his decision waiving the “five-year rule” are set out in a Memorandum dated 23rd September 2011. The Assistant Registrar set out Rule 4(5), summarised the background facts, and directed himself correctly that the rule required him to consider both the “public interest” and any “exceptional circumstances”. He also correctly set out guidance on the meaning of “exceptional”. He then addressed each of the eight factors or considerations stating in summary as follows:(1) The extent of the lapse of time (beyond five years). The Assistant Registrar noted that the allegation was 21 years old and that the lapse of time in this case was “significant”.(2) The reason for the lapse of time. The Assistant Registrar noted that X did make an allegation at the time of the alleged abuse (i.e. in 1990), albeit not to the GMC, only to X’s mother and to the police. He noted the extent of the investigation in 1990, and the fact that the matter had not been raised again by X until the allegation about the D’s grand-daughter in 2011. Beyond this, he did not state that this consideration weighed significantly one way or the other.(3) The gravity of the allegation. The Assistant Registrar noted that the allegation was “serious by any reasonable use of this term” and involved an alleged pattern of inappropriate touching of a child over a number of years.(4) The extent of any continuing unwarranted risk to the public posed by the practitioner. The Assistant Registrar noted the long lapse of time, but stated that the information only became known to the GMC as part of a ‘similar’ allegation against D in respect of events alleged to have taken place very recently.(5) Whether the allegation raised an important point of practice or principle. The Assistant Registrar recognised that there appeared to be no such point of practice or principle at stake.(6) The extent to which the public interest warrants the allegations being ventilated and investigated in order to maintain confidence in the medical profession. The Assistant Registrar again noted the lapse of time, but expressed the view that:
“The allegation here is serious and there was an argument in favour of ventilation at this juncture”
. He noted that X had raised her concerns in 1990 and had done so again in 2011, and that the police had previously taken the 1990 matter seriously enough to investigate formally, albeit no further action was taken. (7) The extent to which evidence is no longer available due to the lapse of time. The Assistant Registrar noted that the 1990 allegations had not proceeded to a criminal prosecution but said that this was not in his view surprising given the lack of corroborative evidence or independent witnesses and the nature of the allegations. He then noted the evidence which had been provided to the GMC and in particular that X was maintaining her story and was now prepared to assist the GMC if asked. (8) Whether there were exceptional circumstances. The Assistant Registrar expressed the view that the allegation was serious, and could itself be considered to be “exceptional”.[24]In the light of these factors and considerations, the Assistant Registrar concluded as follows:
“Taking all of 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 in order to promote public safety and maintain public confidence in the medical profession. That would have been my view in any even had this been the only such 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 the exceptional circumstances of the case, for the five year rule to be waived in order that an investigation into the complaint regarding [D] alleged inappropriate touching of his stepdaughter [X] may be carried out by the GMC.”
[25]On 19th October 2011, the GMC notified D that the decision had been made and that the “five-year rule” had been waived. The GMC then conducted a preliminary investigation. This included taking detailed statements from X and her mother M. On 15th June 2012, the GMC wrote to D setting out the allegations it proposed to consider, along with the relevant documentation, and invited him to respond to them within 28 days. On 19th July 2012 D responded through his solicitors in writing, denying the substance of the allegations and contending that there was no reasonable prospect of the GMC being able to establish that his fitness to practise was impaired, on the basis that the matter had already been fully investigated in 1990. On 24th September 2012, the GMC’s case examiners notified D that they had decided to refer D the Fitness to Practise Panel under Rule 8 after concluding that there was a realistic prospect of establishing that his fitness to practise was impaired. The GMC’s case examiners stated X had provided “clear and cogent” evidence regarding the 1990 allegations that “[b]etween 1985–1990 on a number of occasions [D] sexually assaulted his step-daughter” and, accordingly, the 1990 allegation would go forward to the FTPP. The GMC’s case examiners stated, however, that the 2011 allegation that “[D] sexually abused his two-year-old granddaughter” would not go forward to the FTPP because they had concluded that “there is insufficient evidence to support the allegation and no realistic prospect of establishing the doctor’s fitness to practise is impaired…”.[26]On 5th October 2012, a copy of the 2010 Guidance was provided to D together with the Registrar’s decision letters. The GMC confirmed the latest version of the Guidance had been relied upon by the Registrar when making this decision. On 19th November 2012, D’s solicitors sent a letter before action and commenced these proceedings on 11th December 2012. He sought an extension of time and a stay of the GMC hearing, listed to commence before the Fitness to Practise Panel on 21st January 2013. The GMC raised delay by D in commencing the proceedings. However, on 18th January 2013, Mrs Justice Nicola Davies granted permission, extended time to bring the proceedings to 11th December 2012, and ordered the 21st January 2013 hearing to be vacated.

Grounds of challenge

[27]Counsel for D, Mr Robert Kellar, submitted that the Assistant Registrar’s reasoning in the decision letter dated 23rd September 2011 was flawed because the Assistant Registrar had failed properly to understand or apply the Guidance criteria in relation to “exceptional circumstances”. He raised five detailed Grounds of Appeal in respect of five of the eight criteria, namely(1) Ground 1: the “public ventilation” criterion;(2) Ground 2: the “continuing risk to the public” criterion;(3) Ground 3: the “reasons for delay” criterion;(4) Ground 4: the “availability of evidence” criterion; and(5) Ground 5: the “gravity of allegation” criterion. Mr Robert Kellar also put D’s case on the separate ground (Ground 6) of Article 6 of the ECHR.[28]Counsel for the GMC, Mr David Pievsky, submitted that the Assistant Registrar’s decision was lawful and rational and took into account the relevant considerations. He submitted that Mr Kellar’s points went solely to the weight to be given to the criteria. He further submitted that Article 6 ECHR was not material in the present case.

ANALYSIS

[29]In my view, this case boils down to three main points which demonstrate that the Assistant Registrar’s decision to waive the “five-year rule” was fundamentally flawed. (1). 1990 allegations found to be without foundation[30]First, the Assistant Registrar failed to have regard to the true reason why the original police investigation of 1990 allegations resulted in no further action being taken. This error is evident from the following two passages of the Assistant Registrar’s Reasons (emphasis added): (1) On page 3 of his Reasons, the Assistant Registrar stated under the heading of ‘Background’:
“Although a multi-agency investigation had taken place, no policy or child protection action was taken against [D] due to lack of evidence”. (2) On page 6 of his reasons, the Assistant Registrar stated under the heading ‘The availability of Evidence’: “The Police investigation did not result in a prosecution as, in their view, a prosecution would have been difficult given the lack of corroborative evidence or independent witnesses, a problem which is not surprising given the nature of the allegations.”
[31]In my view, the Assistant Registrar mischaracterised the position. The Assistant Registrar appears to have overlooked the 1990 investigating officers’ basic view of the case, namely that X’s allegations were “malicious”. The 1990 investigating officer’s decision not to pursue the matter further was not simply because of “lack of evidence”,or because a prosecution would have been “difficult” without corroborative evidence or independent witnesses, as the Assistant Registrar supposed. It was because the 1990 investigating officers positively disbelieved the complainant, child X, in circumstances where the complaints had been made in the context of a continuing marital and residence dispute and X’s recent discovery that D was not her father (see the citations from the ‘Case Progress Form’ set out above).[32]The Assistant Registrar’s failure to appreciate the gravamen of the 1990 investigating officer’s decision fatally undermines the basic rationale of his own decision. The Assistant Registrar’s essential reason for finding “exceptional circumstances” was a narrow one:the serious nature of the allegations themselves was the essential justification for permitting further investigation in the public interest (see above). However, the Assistant Registrar’s rationale wrongly assumed ex hypothesi that there was something ‘serious’ to investigate and ignored the fact that the (serious) allegations had already been investigated at the time and found to be,not just unproved and “difficult”, but “malicious”, i.e. without foundation. The Assistant Registrar’s decision is vitiated for this reason alone since it fundamentally undermines most of the rest of the Assistant Registrar’s reasoning. (2). 1995 ventilation to health authorities[33]Second, 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 also been further ventilated before the relevant medical authorities but the positive decision was taken not to refer them. The Assistant Registrar appears to have taken no account of the fact that(i) not only were the police and social services fully aware of D’s profession in 1990 and could have referred the matter to the GMC, but chose not do so (presumably because they did not think that there was anything in them), but that(ii) by 1995 D’s employers, the North West Regional Health Authority, had also became aware of the allegations and could themselves have referred the matter to the GMC, but again chose not do so because there were “no significant implications” from the original findings. (3). 2011 allegation not substantiated[34]Third, 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”. He ought to have appreciated that in light of that conclusion it would be illogical and unfair to refer the 1990 allegations. Absent any fresh similar allegations which were found to have substance, there was no proper basis for revisiting the stale 1990 allegations (which, in any event, had themselves also been found to be without foundation).[35]In my judgment, for each of these three reasons, the decision of the Assistant Registrar was plainly wrong and must be quashed. However, in deference to the industry of counsel, I turn to consider each of the five main Grounds of challenge seriatim.

Ground 1: Public ventilation

[36]Paragraph 14 (7) of the Aide Memoire requires the Registrar to take into account the extent to which the allegation has been “ventilated” before other public or adjudicatory bodies such as the police. It goes on to state the following maxim:
“…..Normally the more alternative ventilation there has been, the less compelling is the need for the GMC to consider the allegation”
. The Guidance also requires the Registrar to consider three specific questions regarding the extent and nature of the ventilation: (i) Has another body has made findings critical of the practitioner? (ii) Have investigating bodies recommended that the GMC should become involved? (iii) Was there a perceived need to protect the public from a practitioner who continues to practise? The question of ‘ventilation’ is linked to the question of maintenance of public confidence in the medical profession (see footnote 49 of the Guidance).[37]The Assistant Registrar stated as follows under the heading of ‘Possible public ventilation of the allegation’:
“These events occurred some 21 years ago. The allegation here is serious and there is an argument in favour of ventilation at this juncture. X raised her concerns in 1990 and has done so again more recently following similar allegations against D. The police took the complaint sufficiently seriously to formally investigate, albeit that no further action was taken.”
[38]In my judgment, the Assistant Registrar entirely failed to grasp the ‘ventilation’ nettle. The point was that the police and social services had formally and thoroughly investigated the allegations at the time and decided they were unfounded (see above). The matter had, therefore, been fully “ventilated” by relevant agencies. The Assistant Registrar failed to apply the maxim that “the more alternative ventilation…, the less compelling is the need for the GMC to consider the allegation” (see above). Further, the Assistant Registrar failed to ask the three questions required by Article 14(7), which if he had done so, would have led to negative answers which militated against any waiver of the “five-year rule”, viz.:(i) Neither the 1990 investigation nor the 2011 investigation had resulted in any findings critical of D.(ii) Neither the police nor the social services had recommended the GMC became involved despite being fully aware of D’s profession.(iii) There could be no perceived need to protect the public in circumstances where the both the 1990 allegations and the 2011 allegation were found to be without substance (and there were no other relevant professional complaints in a 30-year medical career – see further below).[39]The Assistant Registrar’s bare assertion there was “an argument in favour or ventilation at this juncture” is merely that – a bare assertion without any substance.

Ground 2: Continuing risk to public

[40]Paragraph 14 (6) of the Guidance enjoins the Registrar to take into account the extent of “any continuing unwarranted risk to the public and/or to public confidence in the medical profession”.[41]The Assistant Registrar concluded that D represented a continuing risk to the public because of the “similar allegation” made in 2011. For the reasons explained above, however, this conclusion is illogical and cannot stand. The 1990 allegations were investigated and found to be without substance. The ‘similar’ 2011 allegation was also the subject of a full multi-agency investigation which concluded that the allegation was “not one of abuse” and that the allegation was “not substantiated”. Mr Pievsky sought to justify the Assistant Registrar’s decision on the basis that the recent 2011 allegations had triggered the referral and ‘combined’ with the 1990 allegations. However, in my view, this submission suffers from the same fundamental flaw as outlined above: neither set of allegations were found by the relevant authorities to have any substance and logically, therefore, there was nothing to ‘combine’. The Assistant Registrar failed to compute that relevant equation: 0 + 0 = 0.[42]Further, the Assistant Registrar failed to have regard to the fact that the Medical Director of D’s employer had confirmed to the GMC that there had never been any sexual or other similar allegation against D arising from his 30-years in clinical practice.[43]It is relevant to note the views of the Interim Orders Panel (“IOP”) subsequent to the Assistant Registrar’s decision. D’s case was first considered by the IOP on 30th April 2012 D’s case which was not satisfied that there may be impairment to the Claimant’s fitness to practise posing a real risk to member of the public or the public interest. The Panel noted that that there was no information to suggest that the police or social services were currently investigating the 2011 allegations. On 10th October 2012 the issue of protection of the public was considered again by a differently constituted IOP which again was not satisfied that there may be an impairment of the Claimant’s fitness to practice posing a real risk to members of the public. It is instructive that in course of the hearing the IOP chairman expressly queried why the 1990 allegations relied upon by the GMC had not barred by the “five-year rule”. IOP orders, or the lack of them, are relevant to the question of assessing risk to the public (see footnote 47 to paragraph 14 (6) of the GMC’s Guidance).[44]In my judgment, the Assistant Registrar had no evidentiary basis for concluding that there was a continuing risk to the public if D continued to practice.

Ground 3: Reasons for lapse of time

[45]By Paragraph 14 (2) of the Guidance the Registrar is directed to consider the “reasons” for the lapse of time which are properly identified as one of the “more important” considerations for the Registrar under Rule 14 (5).[46]It is noteworthy that there was a hiatus following the Registrar’s initial decision of 15th July 2011 specifically in order to “obtain any information which might explain the reason(s) for the lapse of time between the last alleged incident of misconduct and the date upon which the allegation was referred to the GMC”.[47]The Assistant Registrar stated as follows in relation to the reasons for the lapse of time: “X first raised the allegation with her mother, and subsequently the Police, in 1990. According to the information provided by the Police, an investigation was carried out including interviewing, or at the very least speaking to, D. No charges were subsequently laid, and the matter was not raised again by X until a similar allegation was made against D in respect of his three year old granddaughter”.[48]The Assistant Registrar’s treatment of this issue amounted to no more than a bland recitation of the facts without grasping with the essential point: the reason for the 21 year lapse of time was because the 1990 allegations had been fully investigated, found to be without foundation, the case file closed and the matter long been treated as dead and at no stage did anyone think it appropriate to refer the matter to the GMC. This should have flagged up to him that such moribund allegations could and should not properly be revived.

Ground 4: Availability of evidence

[49]Paragraph 14 (3) of the Guidance directs the Registrar to take into account the extent to which “relevant evidence is no longer available due to the lapse of time.[50]The Assistant Registrar stated in relation to the issue of availability of evidence:
“The Police investigation did not result in a prosecution as, in their view, a prosecution would have been difficult given the lack of corroborative evidence or independent witnesses, a problem which is not surprising given the nature of the allegations. Whilst the GMC has been provided with a Police file, it does not include any witness statements taken at the time or any record of the interviews which took place. That said, X maintains the story that she told 21 years ago, and has confirmed that she is prepared to assist the GMC should we investigate her complaint.”
[51]In my judgment, the Assistant Registrar’s treatment of the issue of availability of evidence was superficial and inadequate. The police had not been able to locate any copies of the audio-taped interviews or written statements obtained during the original investigation in 1990. The absence of such evidence was obviously potentially highly prejudicial to D’s ability defend himself against the fresh detail of the X’s allegations made in her 2011 statement, particularly in circumstances where in her original interviews in 1990 X was said to be “unable to articulate a clear or coherent account” to substantiate the allegations advanced by her and her mother and to be “extremely open to suggestion and unless asked anything ‘leading’ was unable to say anything” (see above).

Ground 5: Exceptional circumstances

[52]It is well-established that the seriousness or gravity of the allegations is one of the factors that the Registrar was entitled to take into account when assessing “exceptional circumstances” (see generally Peacock v. GMC [2007] EWHC 585 (Admin) and Gwynn v. GMC [2007] EWHC 3145).[53]The gravity of the allegations was, in effect, the sole ground relied upon by the Assistant Registrar in this case for finding “exceptional circumstances”. He stated that the gravity of the 1990 allegations alone, and the fact that the abuse took place over a considerable period of time, was sufficient to justify “a public interest in this allegation being investigated by the GMC”, but went on to say that he was ‘strengthened’ in this belief by the existence of the 2011 allegation (see above).[54]In my judgment, for the reasons explained above, the Assistant Registrar’s rationale for finding “exceptional circumstances” fundamentally founders on the illogicality of relying on the ‘seriousness’ of allegations which were thoroughly investigated by the relevant agencies in 1990 and 2011 and found to have no substance.

Alternative Ground 6: Article 6 ECHR

[55]Mr Kellar relied in the further alternative on Article 6 ECHR. In view of my conclusions on Grounds 1 to 5 above, however, any one of which vitiates the Assistant Registrar’s decision, it is not necessary for me to determine Ground 6. Interesting as it may be to look into the application of Article 6 ECHR in the present context, and without any disrespect to the industry of counsel, I decline to do so.

CONCLUSION

[56]In conclusion, therefore, for the reasons set out above, in my judgment, the decision of the Assistant Registrar to waive the “five-year rule” in this case was plainly wrong and flawed and cannot stand. There were no “exceptional circumstances” justifying waiving the “five-year rule”. On the contrary, in my view, the present case represents a paradigm case for the application of the “five-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 and the absence of any further fresh allegations which have been found to be of substance.[57]Accordingly, in the result, I quash the decision made by the Assistant Registrar of the GMC on 23rd September 2011 to waive the “five year rule” under Rule 4(5) of the General Medical Council (Fitness to Practice) Rules 2004.

Cited in 2 later judgments