Gibson, R (on the application of) v General Medical Council & Ors

A disciplinary tribunal should stay proceedings for delay only where the delay makes a fair hearing impossible or creates a compelling and exceptional unfairness in continuing. Unreasonable delay alone does not justify a stay. The same approach applies under common law and Article 6, although Article 6 may provide lesser remedies where a fair hearing remains possible. There is no special category of disciplinary proceedings requiring a stay without proof of prejudice. In deciding voluntary erasure, the tribunal may balance the doctor’s interests against public confidence, professional standards and complainants’ interests. Retirement, age and delay do not necessarily outweigh the public interest in public scrutiny of serious allegations.

The claimant, a retired medical practitioner, faced GMC disciplinary proceedings concerning alleged serious professional misconduct in the analysis and reporting of medical specimens. He challenged the PCC’s refusal to stay the proceedings because of delay and its refusal to agree to his voluntary erasure from the Medical Register, which would have stayed the proceedings.

The alleged conduct occurred between 1990 and 1995. Investigations, complaints and referrals followed over several years, and the substantive hearing was imminent. The central issues were whether the delay made a fair hearing impossible, whether continuing would otherwise be unfair, whether later GMC rules should influence the decision, and how the PCC should exercise its discretion on voluntary erasure.

1. Stay for delay. The application for judicial review failed. At common law, a stay requires proof that delay has caused serious prejudice such that no fair hearing can be held, or that some compelling and exceptional circumstance makes it unfair to continue. The second category is confined to very exceptional cases of manifest unfairness.
2. Article 6 does not alter that test where a stay is sought. Unreasonable delay may require another effective and proportionate remedy, but proceedings should not be stayed where a fair hearing remains possible and no compelling unfairness is established. Disciplinary proceedings attract no special rule under which delay alone requires a stay.
3. The PCC was entitled to conclude that a fair hearing remained possible. The relevant slides were available and the central issue could be addressed through expert evidence. Lost records, changes in screening practice and the claimant’s retirement did not prevent assessment by reference to the standards prevailing when the alleged conduct occurred.
4. The PCC was also entitled to continue the proceedings. It had to assume that the charges had been properly brought, absent bad faith, and could consider the public interest and the complainants’ legitimate interest in public scrutiny. The involvement of counsel instructed by the complainants was potentially unsatisfactory, but any defect was remediable and had not caused actual unfairness.
5. The later five-year rule for stale complaints was not applicable. Treating it as a factor governing the discretion would effectively give it retrospective effect. The PCC acted lawfully in following that advice.
6. Voluntary erasure. The PCC properly balanced the claimant’s interests against public confidence, professional standards and the complainants’ interests. The allegations were serious and included an allegation tantamount to dishonesty. The fact that the claimant was retired and unlikely to practise again did not make erasure decisive. The refusal was not irrational or perverse.
7. The claim was dismissed. The GMC was awarded its costs. No costs were awarded to the interested parties.

First-instance judicial review in the Administrative Court. The judgment does not state any prior appellate decision in this litigation.