R (on the application of D) and General Medical Council [2013] EWHC 2839.

While the second complaint was not proceeded with by the GMC the historical allegation was. In order to do so the GMC had to invoke the waiver to the five year limitation rule placed on complaints. This could only be done “in the public interest…in the exceptional circumstances of the case”

The Registrar found:

“taking all the above matters into consideration it is clear to me, given the nature and gravity of the alleged events which are alleged to have taken place over a significant period of time, that there is a public interest in this allegation being investigated by the GMC, that public interest being an order to promote public safety and maintain public confidence in the medical profession. That would have been my view even had this been the only allegation against D. However, this is not the only such allegation against D and the fact that a similar allegation has now been made to the GMC strengthens my belief that it is in the public interest in exceptional circumstances of the case for the five year rule to be waived in order that an investigation into the complaint regarding D alleging inappropriate touching of step-daughter (X) may be carried out by the GMC”

It was submitted on behalf of D that the Assistant Registrar’s reasoning was flawed because the Assistant Registrar had failed properly to understand or apply the guidance criteria in relation to “exceptional circumstances”. Counsel for the GMC submitted that the decision was lawful and rational and took into account the relevant considerations.

It was the decision of the Court that the Assistant Registrar’s decision to waive the ‘five-year rule’ was “fundamentally flawed” [29]. It was held that;

  1. Firstly the Assistant Registrar failed to have regard to the true reason why the original police investigation in 1990 resulted in no further action being taken. In the view of the Court the Registrar had ‘mischaracterised’ the position. The Assistant Registrar appears to have overlooked the 1990 Investigation Officer’s basic view of the case, namely that X’s allegations were “malicious”. [30-32]
  2. Secondly, the Assistant Registrar failed to have regard to the fact that the 1990 allegations were not only fully investigated (i.e. ventilated) by the Police and Social Services at the time, but they could have been further ventilated at the time if the relevant medical authorities had wished to, but a positive decision was taken not to refer them. [33]
  3. The Assistant Registrar failed to appreciate the significance of the outcome of the joint Police and Social Services investigation in April 2011 that the allegations were “not substantiated”.

It was the judgment of the Court that for each of these three reasons the decision of the Assistant Registrar was “plainly wrong and must be quashed”.

In fact it was held by the Court that the present case represented a “paradigm case” for the application of the ‘five year rule’, involving 21 year old allegations which had been thoroughly investigated by the authorities at the time.

The appeal was allowed.

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