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

The five-year rule is a distinct safeguard against stale complaints. A delayed allegation may proceed only where the circumstances are exceptional and proceeding is in the public interest. The decision-maker must address both requirements and identify the factors that make the particular case exceptional.

Serious allegations alone do not ordinarily justify waiving the rule where the allegations were previously investigated and found to be without foundation, relevant authorities declined to refer them, and any fresh similar allegation was also unsubstantiated. The decision-maker must properly consider the reasons for delay, prior ventilation, evidential prejudice and any continuing risk to the public.

The claimant, a doctor, sought judicial review of the Assistant Registrar’s decision to waive the five-year rule under rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004. The waiver permitted allegations of historic sexual misconduct involving the claimant’s stepdaughter to proceed to investigation and referral to the Fitness to Practise Panel.

The claimant challenged the decision on grounds that the Registrar had misunderstood the previous investigations, failed to apply the GMC’s guidance on exceptional circumstances, and acted irrationally. An alternative claim relied on article 6 of the ECHR. The central issue was whether the circumstances justified proceeding with allegations more than 21 years old.

1. The claim succeeded. The Assistant Registrar’s decision of 23 September 2011 to waive the five-year rule was quashed.
2. Rule 4(5) provides a distinct and free-standing safeguard against stale complaints. It creates a general prohibition subject to a narrowly drawn exception. The Registrar must be satisfied both that exceptional circumstances exist and that proceeding is in the public interest.
3. The decision-maker must identify the public interest and the exceptional circumstances pertinent to the particular allegations. The factors in the GMC’s guidance must be genuinely evaluated, including the lapse of time, reasons for delay, prior ventilation, evidential prejudice, gravity of the allegations and continuing risk to the public.
4. The Assistant Registrar materially mischaracterised the 1990 investigation. The allegations had not merely remained unproved through lack of corroboration; the investigating officers had positively regarded them as malicious and without foundation. Treating the gravity of the allegations as the essential justification for further investigation therefore undermined the decision.
5. The Registrar also failed to consider that the allegations had been fully investigated by the police and social services, that the relevant health authority knew of them by 1995 but did not refer them to the GMC, and that the 2011 investigation concluded that the fresh allegation was not substantiated. Those matters provided no rational basis for combining the allegations or finding a continuing risk to the public.
6. The treatment of the reasons for delay and availability of evidence was superficial. The long lapse arose after the original investigation had closed the matter, and the loss of contemporaneous interview records was potentially prejudicial to the claimant. The article 6 ground was left undetermined because the decision was quashed on the other grounds.

This was a first-instance judicial review claim. Permission was granted on 18 January 2013, and the pending Fitness to Practise Panel proceedings were stayed pending determination of the claim.