Robert Kellar appeared for D in these proceedings
D, R (on the application of) v The General Medical Council  EWHC 2839 (Admin) – Read judgment
The High Court has strongly affirmed the prohibition against the pursuit of long delayed complaints against doctors in regulatory proceedings. The prohibition arose from the General Medical Council’s own procedural rules. It applied even where the allegations were of the most serious kind, including sexual misconduct, and could only be waived in exceptional circumstances and where the public interest demanded. The burden was upon the GMC to establish a sufficiently compelling public interest where allegations had already been thoroughly investigated by the competent authorities such as the police and social services.
Although the Court’s robust approach is to be welcomed, an opportunity to clarify the relevance of Article 6 ECHR in this context was not taken. The author suggests that Article 6 ECHR has an important part to play in protecting the rights of practitioners facing long delayed complaints.
D was a consultant obstetrician. In 1999 he had been accused by his wife of touching his 15 year old stepdaughter (X) in a sexually inappropriate manner. The allegation was made in the context of an acrimonious divorce. Police child protection officers and social services conducted a joint investigation. They found that X was unable to describe any specific acts of touching, was open to suggestion and unless asked anything leading was unable to explain how the alleged touching had taken place. The joint investigation concluded that the allegation was “malicious” and that the alleged touching had “not happened”. Accordingly the investigation was closed and no further action was taken. D’s employing health authority had become aware of the allegations by 1995 at the latest. No referral had been made to the GMC at that time. In 2011 a further allegation was made by D’s ex-wife, this time in relation to D’s grandson. Again a thorough police and social service investigation concluded that the concerns were unsubstantiated.
The General Medical Council became aware of the index allegations in 2011. The GMC’s own rules of procedure contained a prohibition against long delayed complaints: “the five year rule”. Rule 4 (5) of the Fitness to Practise Rules reads as follows:
“No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for it to proceed.”
The five year rule was waived in a decision by the GMC’s Assistant Registrar. In essence, the Registrar’s view was that allegations were obviously serious given that they involved “a pattern of touching of a child over a number of years”. That being so there was a strong “public interest” in the allegations being investigated by the GMC in order to promote public safety and maintain public confidence in the medical profession.
The Decision of the Court
Mr. Justice Haddon-Cave considered that the reasoning of the Assistant Registrar was wholly inadequate to justify the waiver of an important procedural safeguard. Indeed, this was a “paradigm case” for the application of the “five-year rule”, involving, as it did, stale 21 year-old allegations which had been thoroughly investigated by the police and social services at the time and found to be without foundation and the absence of any further fresh allegations which had been found to be of substance. In essence, the Judge held that:
- The GMC had mischaracterised the nature of the original police/social services investigation in 1999. This was not a case where the police had abandoned the original investigation due to lack of evidence. The police had reached a positive conclusion that the original allegation was “malicious”. That conclusion needed to be given its proper weight.
- Nor had the GMC taken any proper account of the fact that D’s medical employer had been aware of the allegations in 1995 but had not sought to refer the matter to the GMC.
- Finally, by taking into account the existence of the 2011 allegations the GMC had taken into account an irrelevant consideration. It was “illogical and unfair” for the GMC to rely upon such allegations given that they too had been found to be without substance by the competent authorities.
The Court’s judgment recognises implicitly that a regulator must exercise care when considering the “public interest” in prosecuting allegations of misconduct that have already been investigated. A regulator should show appropriate deference to the decisions of competent state bodies who have already investigated allegations. Such bodies may well have specialist expertise that makes them better equipped to assess the allegations than the regulator itself.
Article 6 ECHR
Given its decision on ordinary public law principles, the Court declined to determine the Claimant’s alternative argument under Article 6 ECHR. Article 6 provides that: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” It is well established that Article 6 applies in the regulatory context (see Ghosh v. General Medical Council  1 WLR 1915). It is similarly well established that Article 6 precludes unreasonable delay in the course of regulatory proceedings. However, in the present context it arguable that Article 6 goes further. It is arguable that time runs from the moment that the police opened formal investigations into a matter with serious implications for a doctor’s career.
For the purpose of Article 6, time begins to run from the date that “preliminary investigations” are opened against a person by a state body. “Charge” for the purposes of Article 6 has an autonomous meaning which corresponds to when “the situation of the suspect has been substantially effected” (see Eckle v. Germany (1983) 5 EHRR 1; Ambrose v. Harris  UKSC 30). Thus in the Scottish case of HM Advocate v. Little  SLT 1145, there was a breach of Article 6 where the accused was indicted for sexual offences approximately 11 years after they were first investigated.
The findings in a criminal investigation are plainly capable of having a very important, if not determinative, influence in subsequent regulatory proceedings: see the Article 6 test affirmed G v. Governors of X School  UKSC 30. Moreover, competent state authorities including the police, social services and the NHS should reasonably be expected to make a prompt referral to the GMC where serious concerns about a doctor’s conduct arise. Article 6 imposes an obligation upon the state as a whole. Reasonable co-operation between different state authorities is to be expected to achieve a prompt determination of a person’s civil rights and criminal liability (see eg: Burns v. HM Advocate  UKPC 63).
Ultimately, the underlying purpose of Article 6 is to ensure that a person “should not remain too long in a state of uncertainty about his fate” (see HM Advocate v Little). In the author’s view Article 6 should also protect doctors from remaining too long in a state of uncertainty about their professional fate after the commencement of a criminal investigation with potentially devastating consequences for his or her career.
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