Selvarajan v General Medical Council

Delay in professional disciplinary proceedings may mitigate the sanction, including where it contributes to a breach of the reasonable-time obligation under Article 6. The disciplinary purpose of protecting professional standards does not make delay irrelevant. The tribunal must consider whether delay makes the proposed sanction oppressive or disproportionate, although delay does not automatically require a lesser sanction. In serious cases of sustained dishonesty, erasure may remain necessary despite substantial delay. A tribunal’s conclusion on delay is a legal judgment and does not attract special deference merely because the tribunal has professional expertise.

The appellant, a general practitioner, appealed against the General Medical Council’s decision to erase him from the medical register. He had admitted serious professional misconduct involving dishonest prescriptions and the fraudulent loss of approximately £150,000 to a health authority.

The misconduct had occurred between 1994 and 1996. The GMC was informed of the allegations in 1998, but formal disciplinary proceedings were not properly notified until 2004 and the sanction was imposed in 2006. The appellant argued that the delay was relevant mitigation and that the Fitness to Practise Panel had misdirected itself by treating delay as irrelevant to sanction.

The central issues were whether delay could mitigate a disciplinary sanction and, if so, whether erasure remained proportionate in the circumstances.

1. Appeal dismissed. The Panel had misdirected itself by treating delay as irrelevant to sanction. The court publicly acknowledged a breach of the appellant’s Article 6 right, but granted no relief from the sanction of erasure.
2. Delay in bringing or prosecuting disciplinary proceedings can be relevant mitigation. The longer the threat of erasure has remained over a professional, the more severe and punitive the sanction may appear. Delay may also cause practical prejudice, particularly where practice has been suspended or restricted, or where the practitioner’s age makes restoration unrealistic.
3. The distinction between criminal punishment and professional discipline does not prevent disciplinary tribunals from considering delay. The purpose of professional sanctions is protection of the profession and public confidence, but a sanction may still be oppressive or disproportionate because of delay.
4. A breach of the reasonable-time requirement does not automatically require a stay. The breach may be vindicated by other remedies, including a public acknowledgment, compensation or reduction of the otherwise appropriate penalty. That reasoning applied equally to the assessment of disciplinary sanction.
5. The Panel’s conclusion that there had been no unreasonable delay was legally wrong. It failed to distinguish unjustifiable from unreasonable delay, failed to account for delay caused by the GMC’s mistaken legal approach, and gave insufficient weight to the overall period from notification of the allegations to determination. The appellant had not materially caused the delay.
6. Nevertheless, the misconduct was sustained and seriously dishonest, committed in a professional capacity and fundamentally undermining public trust. The case was not borderline between erasure and suspension. The appellant had remained able to practise and earn his living, and delay had not materially prejudiced any realistic prospect of restoration. Erasure therefore remained the only appropriate sanction, and remittal would cause further unacceptable delay.

• General Medical Council Fitness to Practise Panel: on 30 March 2006, directed that the appellant’s name be erased from the medical register following his admission of serious professional misconduct.
• High Court (Administrative Court): allowed the challenge to the Panel’s approach by declaring the misdirection and publicly acknowledging the Article 6 breach, but dismissed the appeal and left erasure in place.