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R (on the application of D) v General Medical Council (2013)
The decision of an Assistant Registrar of the GMC to refer allegations involving sexual misconduct dating back more than five years to the GMC’s case examiners was fundamentally flawed, as he had failed to have regard to the fact that the allegations had been previously investigated by the police and found to be malicious.
Under the General Medical Council’s (Fitness to Practice) Rules 2004 (r.4(5)) the Registrar will  not refer an allegation more than 5 years old unless it is considered that in the exceptional circumstances of the case, it is in the public interest to proceed.
The claimant doctor (D) sough judicial review of a decision made by an assistant registrar of the GMC, who had referred allegations involving sexual misconduct of more than five years old to the GMC’s case examiners.

In 1990 a complaint was lodged by his estranged wife (M).  D was accused of touching his 15 year old stepdaughter (X) in an sexually inappropriate way.  The matter was investigated by both the police and social services, but found that X was open to suggestion and unable or unwilling to describe any specific acts of touching unless asked leading questions.  They decided to take no further action concluding that the complaint was malicious.  In 1995 D’s health authority became aware of the allegations and concluded that as no action had been taken there were no significant implications arising from the allegations.

In 2011 M made another complaint alleging that D had inappropriately touched his two year old granddaughter.  Again, both the police and social services investigated the matter and found it to be unsubstantiated.  On this occasion, the health authority did refer this matter to the GMC. There was insufficient evidence to pursue the 2011 allegation.  However, X provided a detailed account of being sexually abused by D when she was between the ages of 10 and 15.  The police provided the GMC with their records of their investigation into that matter and it was referred the case examiners.

The reasons given by the Assistant Registrar for the referral were that as the allegations were serious, he decided to waive the five-year rule on the grounds that there were exceptional circumstances and proceeding was in the public interest. Importantly though he stated that no action had been taken in 1990 because of a lack of evidence, which made a prosecution difficult, rather than the police finding it to be a malicious complaint.

By way of judicial review it was held that the Assiatant Registrar's decision was fundamentally flawed as he failed to give the true reason why the police investigation into the 1990 complaint has resulted in no further action.  The fact that the police has positively disbelieved the complaint and the Assistant Registrar's failure to have any regard to this undermined the rationale for his decision by citing the ‘serious nature of the allegations’ wrongly assumed that there was something serious to investigate and ignored the fact that it had already been investigated and found to be malicious.  He further failed to have regard to the fact that the matter could have been further investigated by the medical authorities at the time but had not done so on the basis of the police’s conclusions.  Neither the police nor D’s employer had felt that the matter warranted referral to the GMC at the time.

The Assistant Registrar had failed to appreciate the significance of the outcome of the 2011 investigation that the allegations were not substantiated. In light of that he should have appreciated that it would be illogical and unfair to refer the 1990 allegations. Unless there were fresh or similar allegations which were found to have substance, there was no proper basis for revisiting the stale 1990 allegations. The decision had been plainly wrong and would be quashed.

For a link to the full judgment please click http://www.bailii.org/ew/cases/EWHC/Admin/2013/2839.html