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

Under Rule 4(5), a complaint outside the five-year period may proceed only where the circumstances are genuinely exceptional and proceeding is in the public interest. Ordinary features of a professional complaint, such as seriousness, repeated incidents or the general desirability of maintaining confidence in the profession, do not suffice. Any continuing risk must relate to the conduct alleged. The decision-maker should identify and explain the exceptional circumstances, although failure to do so expressly is not invariably fatal. A decision may nevertheless be quashed on judicial review where no reasonable decision-maker could find the required exceptional circumstances.

The claimant sought judicial review of the Registrar of the General Medical Council’s decision dated 26 May 2006 to refer a complaint to the Case Examiners under Rule 4(5). The complaint concerned alleged conduct during private psychiatric treatment between 1996 and 1998, but was made in 2006. The Registrar considered the delay, gravity of the allegations, continuing risk, availability of evidence and public interest, and concluded that exceptional circumstances justified proceeding. The central issue was whether that conclusion was legally sustainable.

The claimant also challenged other aspects of the decision, but the judgment focused on the challenge that the referral was irrational.

1. Claim allowed. The reference to the Case Examiners was quashed. The claimant was awarded costs, summarily assessed at £10,000 including VAT.
2. Rule 4(5) required the Registrar to identify circumstances which could genuinely be described as exceptional. The significant delay, the absence of a satisfactory explanation for it, the possible loss of evidence and the general public interest in investigating complaints were not, on the face of the decision, exceptional. The public-interest rationale would apply to ordinary complaints against medical practitioners and therefore could not itself satisfy the exception.
3. The gravity of the allegations was materially overstated. Only the allegation concerning removal of clothing, examination and brushing the complainant’s chest could sensibly be described as serious. The alleged conduct was at the least serious end of the spectrum, and there was no apparent evidence of particularly serious impact on the complainant.
4. Any continuing risk had to be assessed by reference to the gravity and nature of the allegation. The Registrar had relied on a recommendation that the claimant should not practise unsupervised, but that recommendation related to competence as a psychiatrist, not to inappropriate sexual conduct. It therefore did not establish a continuing risk of the kind alleged.
5. The Registrar’s failure to spell out the exceptional circumstances was not automatically fatal. Identifying them was, however, a useful discipline, particularly because the court was exercising judicial review rather than an appellate function and had to respect the Registrar’s view of the public interest. On the facts, no reasonable Registrar could have concluded that the necessary exceptional circumstances existed.

First-instance judicial review proceedings. The judgment records that Collins J dealt with an oral permission renewal, but gives no separate citation for that stage.