The correct approach to the GMC considering complaints over 5 years’ old

A recent court decision has confirmed that no allegation against a medical practitioner should proceed further if more than five-years have elapsed since the actual date upon which the most recent events giving rise to the allegation took place, except where the General Medical Council considers it is in the public interest to do so.

In the recent case of Dr Chaudhuri, patient A saw Dr C on three occasions in 2008 complaining of a sub-mandibular swelling for which Dr C prescribed antibiotics. In 2009, following a referral by another GP to a head and neck surgeon, patient A was diagnosed with cancer at the base of his tongue.

On 26 July 2013, a relative of Patient A lodged a complaint against Dr C with the GMC. In the complaint letter it was stated that Dr C saw the patient on three occasions in April, June and August 2008.

The five-year rule

At the initial stages of every investigation a Registrar at the GMC examines, amongst other things, whether the complaint falls under Rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004. Rule 4(5) 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.”

When the complaint was received in July 2013, the GMC Registrar concluded that on the April – August 2008 allegation dates, the five-year rule was not engaged and the complaint should proceed, as the most recent date Dr C allegedly saw Patient A was in August 2013. On 10 October 2013 the GMC received copies of Patient A’s medical records, which showed that the last consultation with Dr C had in fact been on 22 May 2008, which was over five years before the complaint was received. Although Dr C’s solicitors wrote to the GMC highlighting the initial error with respect to the dates and the fact that Rule 4(5) was engaged, the GMC decided to proceed with the case. Consequently, Dr C brought a Judicial Review claim against the GMC.

What the Court said

In this case, the Court found in favour of Dr C on two grounds. First, it was held that the construction of Rule 4(5) is directed to the time elapsed since the actual date upon which the most recent events giving rise to the allegation took place (May 2008) and not the alleged date (August 2008). Second, the Court found that the GMC Registrar’s refusal to reconsider her decision after Dr C’s solicitors drew her attention to the factual error with respect to the dates was unlawful. The judge stated that although the GMC Registrar is entitled to take an initial view as to what the actual dates are based on the information in the complaint, if further information comes to light, the GMC has the power to revisit and correct a fundamental mistake of fact, such as this one. As a result, the Court quashed the GMC Registrar’s original Rule 4(5) decision and remitted the case back to the GMC for reconsideration.

What doctors need to know

•  The decision upholds the safeguard afforded to practitioners by Rule 4(5), namely, to protect them against “the pursuit of long-delayed complaints”.
• The court’s interpretation of the wording in Rule 4(5) is also in line with GMC Guidance, which states that although a reasonable amount of time should be allowed to pursue complaints, practitioners should not be pursued by stale complaints.
• By ruling that for the purposes of Rule 4(5) the relevant date is the actual date, rather than the alleged date, that the most recent events giving rise to the allegation took place, the court highlights the importance of protecting practitioners against complaints where the wrong date has inadvertently or intentionally been used.
•  When handing down his judgment, the judge clarified that there is “no obligation [on the GMC] to check every single detail of the complaint against the medical records at the initial investigation stage, since to do so would be unduly burdensome and potentially wasteful”.

It is therefore extremely important for practitioners to ensure that their legal teams give early and adequate consideration to any factual discrepancies in the allegations that could potentially engage Rule 4(5): the proper application of the five year rule may mean that your fitness to practice allegation is not taken forward.

This blog was written by Elena Matsa, Legal Assistant in the Regulatory and Professional Discipline team.