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

A decision to waive the five-year limit for a fitness-to-practise investigation must follow a fair and properly informed inquiry. The decision-maker must establish the relevant dates, the practitioner’s actual responsibility and knowledge, the reasons for delay, and the weight of the public interest. Alleged seriousness cannot be assessed by reference to conduct outside the practitioner’s responsibility or occurring after relevant involvement ended. Where the evidential position remains unresolved, the court should normally quash and remit rather than determine whether exceptional circumstances exist itself. The threshold of exceptional circumstances requires matters that are outside the routine and truly out of the ordinary.

The claimant, a registered medical practitioner, sought judicial review of the General Medical Council Assistant Registrar’s decision of 20 November 2012 to waive the five-year limit for investigating concerns about his fitness to practise. The concerns arose from allegations that doctors at a practice had failed to investigate or report sexual-misconduct complaints concerning another doctor. The defendant accepted that the decision should be quashed, but disputed the further relief sought. The central issues were whether the court should determine the rule 4(5) question itself and what directions should govern reconsideration.

1. The decision was quashed. The Assistant Registrar had acted procedurally unfairly by deciding the waiver issue without obtaining relevant detailed material, without clarifying when the claimant left the practice or what responsibility and knowledge he had, and without giving him an opportunity to respond to the material relied upon.
2. The decision-maker had also failed to address important matters properly. The period of delay depended upon the date of the claimant’s last relevant involvement. The claimant’s degree of culpability depended upon his actual responsibilities and knowledge. The PCT’s reasons for delaying referral, including alleged concern about prejudice to a criminal prosecution, were capable of counting against waiver where they did not logically justify withholding a referral to the GMC.
3. Potential seriousness could not properly include alleged suppression of, or failure to co-operate with, a police inquiry where the claimant had left the practice before that inquiry began and had in fact provided a witness statement when asked.
4. The court declined to decide itself whether there were exceptional circumstances justifying proceeding outside the five-year limit. Under CPR 54.19, applying Senior Courts Act 1981, section 31(5) and section 31(5)(a), remittal was appropriate because the core facts were not fixed and more than one outcome remained open. The balance between the public interest and the stringent exceptional-circumstances threshold was for the GMC after a fair inquiry.
5. The matter was remitted to the defendant for reconsideration by a person other than the original decision-maker. The GMC was directed to disclose any further relevant material and to allow the claimant 21 days to make representations. The reconsideration was to take account of the GMC aide memoire and the judgment’s observations on the meaning of exceptional circumstances.

This was a first-instance judicial review application. Permission was granted by His Honour Judge Pelling, sitting as a Deputy High Court Judge, on 18 September 2013.