Young, R (On the Application Of) v General Medical Council

The five-year restriction in rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004 is not an immunity or ordinary limitation period. The question is whether, having considered all relevant factors, the public interest requires the allegation to be investigated. The Registrar’s initial role is one of triage, not a determination of misconduct or fitness to practise. A review under rule 12 may be undertaken where the earlier decision was materially flawed and a review is otherwise necessary in the public interest. On judicial review, the court reviews the legality and rationality of the Registrar’s decision and must not substitute its own view. The claim failed because the reviewing Assistant Registrar was entitled to find material errors in the original assessment of the allegations, delay, gravity and public confidence.

The claimant, Professor Ian Young, challenged decisions by the General Medical Council’s Assistant Registrar under rules 4(5) and 12 of the General Medical Council (Fitness to Practise) Rules 2004. An earlier decision had concluded that allegations concerning conduct in 2004 and 2006 should not proceed because more than five years had elapsed. On review, a second Assistant Registrar found material flaws and referred three allegations to the Case Examiners.

The challenge alleged that the review power was not engaged and, alternatively, that the review and substituted decision were unlawful. The central issues were the construction of the five-year restriction, the meaning of a materially flawed decision, the public-interest threshold for review, and the proper approach to judicial review.

1. The claim was dismissed. The court held that there was no legal basis to interfere with the Assistant Registrar’s decisions dated 9 January and 23 March 2020.
2. Rule 4(5) is a form of triage. The Registrar does not determine whether an allegation is proved or whether the practitioner is unfit to practise. The relevant question is whether, after considering all relevant factors, the public interest requires the five-year restriction to be applied.
3. The language of waiver is misleading. The restriction does not confer an absolute entitlement comparable to a private-law limitation defence. The statutory framework in s.35CC(5) of the Medical Act 1983 required the GMC to consider whether it would be in the public interest to investigate the allegation.
4. A decision under rule 4(5) may be reviewed under rule 12(1)(a). The review power is engaged where the original decision may be materially flawed or new information may have led to a different decision, and a review is necessary on one of the grounds in rule 12(3). “Materially flawed” means an error of real significance which might have led to a different conclusion.
5. AR2 was entitled to find that AR1 had materially misunderstood the Inquiry’s criticisms, failed to address matters within the claimant’s specialist expertise, treated the reasons for delay illogically, and inadequately considered the duty of candour and public confidence. The seriousness of those matters was relevant to both gravity and the public-interest assessment.
6. The court’s task was supervisory. It could not substitute its own view for AR2’s evaluative judgment. The decisions were to be read fairly and as a whole, and intervention was limited to jurisdictional error or public-law error, including irrationality. AR2 had properly considered prior ventilation, evidential prejudice, delay and regulatory history. Referring the allegations to the Case Examiners did not amount to an abdication of her own responsibility.