The FCA – Transformation to Assertive Supervision
Decision by GMC to consider allegations made 6 years after the event, which was quashed by way of judicial review, to be treated as if it had never happened, leaving it open to GMC to consider that decision afresh.
Decision date: 29 October 2013
Allegations of misconduct had been made against the claimant doctor (H) by a female patient (B). B, who suffered from a mental illness, had been treated by H after she was admitted to a residential placement in 2006. The complaints H made about her treatment were not made until 6 years later.
Rule 4(5) of the General Medical Council (Fitness to Practise) Rules Order of Council 2004, often referred to as ‘the five year rule’ states that;
‘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.’
Given that over 5 years had passed since the events giving rise to the allegation, the present allegations could therefore only proceed if the Registrar found that it was in the public interest to do so. Having considered the case, the Registrar so decided. H challenged that decision by way of judicial review, submitting that the decision had been made without reference to him and without him being provided with an opportunity to make representations. The GMC accepted that that challenge should succeed and the Registrar’s decision was quashed.
In the present case, the court was required to determine whether the defendant GMC had jurisdiction to re-consider the allegations, presumably with the requisite notice being given and an opportunity to respond provided.
H submitted that it was not necessary for the court to decide whether the GMC could consider the allegations as no reasonable registrar would consider it appropriate to waive the five year rule. Further, it was argued that the GMC were estopped from reconsidering the allegations in any event, due to their jurisdiction being restricted under r12.
It was held that the GMC were not ‘reconsidering’ the matter. The general rule where a decision is quashed by way of judicial review, having considered the case of R (on the application of Shoesmith) v Ofsted  EWCA Civ 642, is that it is to be treated as if it never happened. It had retrospective and not prospective effect. Any subsequent decision to refer or otherwise was therefore a ‘fresh’ decision. Given that the rationale behind the Rules is to protect the public, that objective would not be served if the GMC was estopped from exercising its statutory duty.
A reminder that where a decision has been quashed as a result of judicial review, it is to be treated as never having happened, leaving the decision maker able to re-make said decision. This was held to be especially logical bearing in mind the purpose and rationale behind healthcare regulation, namely protection of the public.
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