Gwynn, R (on the application of) v The General Medical Council

Regulatory proceedings cannot ordinarily be revived after a complaint has been formally closed, except within the limits communicated when it was closed and subject to fairness and reasonableness. A regulatory time-bar provision requiring proceedings to continue only in the public interest and in the exceptional circumstances of the case must be applied in those terms. The decision-maker must identify the exceptional circumstances and explain why the public interest justifies proceeding. Factors such as seriousness, continuing risk, available evidence and the desirability of hearing related allegations together do not replace that test. A late attempt to cure an earlier failure to apply the time-bar is unlawful where the decision does not apply the correct test or gives adequate reasons.

The claimant, a consultant surgeon, faced Fitness to Practise Panel proceedings concerning eleven patients. He sought judicial review of decisions allowing allegations concerning five patients to proceed.

One complaint had been screened and closed in 2002, but was revived in 2007. Four other complaints were made outside the five-year period in rule 4(5) of the General Medical Council (Fitness to Practise) Rules Order of Council 2004. The Registrar initially referred them without considering the rule 4(5) question and later attempted to rectify that omission. The central issues were whether the closed complaint could be reopened and whether the later decisions properly applied the exceptional-circumstances and public-interest test.

1. Outcome. The judicial review claim succeeded. The relevant decisions of the General Medical Council and the Fitness to Practise Panel were quashed, and the allegations concerning CL, SG, VS, JW and JA were stayed.
2. Closed complaint. Under rule 6(1) of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988, the Registrar had to refer a complaint raising a question of serious professional misconduct to a Medical Screener. If it did not raise such a question, the screening decision disposed of the complaint. The rules made no provision for a complaint to remain provisionally suspended. A case formally closed under the Registrar’s authorised screening procedure could not be reopened at the GMC’s own instigation. In any event, reopening after more than four years was manifestly unfair and unreasonable. The reasoning in Brabazou-Drenning v the United Kingdom Central Council for Nursing, Midwifery and Health Visiting CO/490/2000 supported that conclusion.
3. Rule 4(5) test. Rule 4(5) of the General Medical Council (Fitness to Practise) Rules Order of Council 2004 imposed a five-year restriction, subject to the Registrar being satisfied that it was in the public interest, in the exceptional circumstances of the case, for the allegation to proceed. The Registrar had to identify the exceptional circumstances and assess whether, in those circumstances, the public interest justified proceeding. Serious professional misconduct alone was insufficient, though exceptionally serious misconduct might itself constitute an exceptional circumstance if that was clearly stated. The approach in Peacock v The General Medical Council [2007] EWHC 585 (Admin) was applied.
4. Reasons and institutional role. Rule 4(5) required a distinct and free-standing safeguard. Although the Rules did not expressly require reasons, fairness required adequate reasons, especially where a later decision purported to cure an earlier procedural error. The Registrar’s function was to decide whether the allegation should proceed to the Case Examiners, not whether it should ultimately be heard by the Fitness to Practise Panel or heard together with other allegations. The desirability of presenting all related evidence together therefore did not satisfy rule 4(5).
5. Individual decisions. The decisions concerning JW, VS, JA and SG failed to identify the exceptional circumstances and instead focused on matters such as seriousness, patterns of complaints, available evidence, continuing risk and the convenience of a combined hearing. The decisions were therefore unlawful and the procedural irregularities were not cured. The formulation criticised in Haywood v the GMC [2007] EWHC 2236 was also treated as inappropriate.

First-instance judicial review proceedings in the Administrative Court. The court granted permission, allowed the substantive application, quashed the challenged decisions and ordered stays in respect of the five patients.