R (Grabinar) v GMC (2013) EWHC 4480 (Admin)
The claimant sought to review the GMC's decision to waive the five year limit on bringing an investigation into a registrant's fitness to practise. The claimant had worked with a colleague, Dr Ragupathy, who was the subject of numerous complaints of sexually inappropriate behaviour towards patients from around 1996 onwards. Following one acquittal in 2008, he was convicted in relation to further allegations of sexual assault in 2010. However, as of 2003, the claimant maintained he had left the practice.
The PCT commissioned an investigative report by Dr Calit which was completed in December 2010. Amongst her conclusions she criticised the conduct of the other doctors who worked with Dr Ragupathy including the claimant for failing properly to investigate the complaints. These criticisms did not distinguish between these doctors' levels of responsibility and culpability nor did it make clear when the various doctors were members of the practice.
In August 2012 the PCT passed on these concerns about the claimant to the GMC and in due course submitted the GMC should waive the five year rule. In justifying this course of action it observed that there was a significant delay between the incidents occurring and the PCT becoming aware of them, the delay in making the referral was in order not to prejudice the criminal proceedings against Dr Ragupathy, and the allegation of non-reporting is in any case particularly serious. The Deputy Registrar considered the case and decided to waive the five year rule. He did so without seeking any further information from the PCT, for example the witness statements relied on by Dr Calit, or even asking the claimant for a response.
It was conceded this decision was procedurally flawed. It was apparent the PCT's justification for delaying the referral was nonsensical. Merely making a referral could not have prejudiced the criminal investigation. Any such concern could have been assessed by the GMC in any case. Moreover, since the allegation was one of failing to investigate concerns about Dr Ragupathy, whether those concerns were true or false was beside the point.
Blake J identified further significant failings. The Deputy Registrar had not ascertained precisely when the claimant may have last breached his professional obligations. If, as he maintained, the claimant left the practice in 2003, then the period of extension required was close to four years. The level of the claimant's alleged culpability for the failing to investigate these concerns was not clear. This was relevant to the weight to be attached to the public interest. The illogical reasons for given by the PCT were capable of being an important factor against waiver. Finally, the Deputy Registrar relied on the seriousness of the claimant's conduct in failing to cooperate with the police investigation. If the claimant in fact left in 2003, no police investigation had even begun then. Moreover, it appeared the claimant had provided a witness statement for the criminal investigation and apparently was called as a witness at trial.
The case was remitted back. The judge noted that it would be inappropriate for him to make the decision himself:
"such an exercise of jurisdiction could only be made where there was only one outcome available to a properly self-directing Registrar. In a case where in particular the core facts are not yet fixed it would be inconceivable the court could exercise such a jurisdiction."
Care must be taken to justify any departure from the usual five year limitation. The case last year of R (D) v GMC (2013) EWHC 2839 (Admin) made the same point. The GMC had allowed old sexual allegations to be referred without considering the basis upon which the police had dropped the case, namely the fact the complainant was malicious. The mere fact allegations are serious does not of itself justify waiver. It is precisely because such care must be taken in exercising this jurisdiction that regulators should make sure the proper procedural safeguards are always applied. The Deputy Registrar's failure in this instance to consult the claimant in advance of making his decision was particularly unfortunate.