Hibbert v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Simler |
| Judgment Date | 29 October 2013 |
| Neutral Citation | [2013] EWHC 3596 (Admin) |
| Date | 29 October 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/10566/2012 |
[2013] EWHC 3596 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Simler
CO/10566/2012
Mr M Spencer QC (instructed by Berrymans Lace Mawer LLP) appeared on behalf of the Claimant
Ms G White (instructed by the GMC) appeared on behalf of the Defendant
Mr N Bowen QC appeared on behalf of the Interested Party
This is an application for judicial review. At the outset, the court was invited to make an anonymity order in the terms of a draft agreed by all the parties in its terms, but so far as the claimant is concerned, his stance was neutral. He did not oppose it but nor did he consent to it. For the reasons I gave at the beginning of this hearing and those set out in the application for anonymity, in my judgment, the application is justified as necessary in the circumstances of this case, and I make the order in the terms sought. As indicated, references to the interested party are to Miss B rather than to SBC, and references to the child are to Child B.
The claimant has permission in this case, granted by Mr Justice Ouseley on 4 May 2013, to challenge a decision of the defendant, the General Medical Council. The decision was made by an assistant registrar on 4 July 2012 to waive the five year rule in respect of an allegation made against the claimant. The effect of that waiver is that the allegation would proceed ordinarily to an investigation, despite its age.
In short summary, the background is as follows. The allegation against the claimant is made by Miss B, the interested party, a mother. The claimant was appointed to provide expert reports in family court proceedings concerning Miss B's child, born in 2006, Child B.
Miss B had a history of mental illness and Child B was therefore made the subject of an interim care order to assess her capacity to meet the baby's needs. The local authority instructed the claimant to carry out a residential assessment of her. Miss B was accordingly admitted to a residential placement for a period of three months in 2006 that lasted until 18 May 2006.
During the period of residential placement, the claimant provided detailed reports based on his assessment of her. On 30 May 2012, Miss B made a complaint to the GMC, received by the GMC on 1 June 2012, arising out of treatment she laid at the door of the claimant, alleging misconduct by the claimant in the care and treatment provided to her and to the child.
The complaint was made six years and two weeks after the conclusion of her residential assessment under the claimant's supervision. Because of that lengthy delay, and the fact that Miss B's allegation was made more than five years after the most recent event giving rise to it, the complaint fell to be considered under 4(5) of the General Medical Council (Fitness to Practise) Rules 2004, as amended ("The 2004 Rules") rule 4(5) provides as follows:
"(5) 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."
The effect of a decision to waive the five year rule under rule 4(5) is that the allegation is investigated under rule 7 of the 2004 Rules and is then referred to case examiners for a decision as to whether it should proceed further: see rule 8.
In this case, the decision of the assistant registrar made on 4 July 2012 to waive the five year rule was challenged by the claimant on a number of bases. Most significantly, it was made without reference to the claimant, who was given no opportunity whatever to make representations about it. There were other challenges to its legality but it is not necessary to deal with those in any detail because, following the grant of permission to challenge the decision by way of judicial review, the GMC no longer seeks to defend that decision. Instead, the GMC has acceded to this application, inviting this court to make an order quashing the decision.
Before proceeding to the issue for me today, I should emphasise that the complaints made against the claimant are just that at this stage, complaints. Their substantive merits have not been investigated and no decision adverse to his professional reputation has been taken.
The issue that remains between the parties, both having agreed that there should be a quashing order in respect of the 4 July 2012 decision, is the effect of that quashing order and the extent of the court's jurisdiction to direct reconsideration of the decision to refer the allegation.
The GMC, for its part, seeks an order permitting the complaints to be reconsidered (considered might be a better way of putting it) by a different registrar, pursuant to the 2004 Rules. It has sought to agree a timetable with the claimant whereby there be consent to the quashing of the decision and a stay of these judicial review proceedings with a timetable for a fresh consideration to take place so that the claimant could then pursue any judicial review challenge, both as to jurisdiction and legality or rationality. It was not until 11 September that the claimant withdrew his irrationality challenge to the decision and, having done so, also rejected the GMC's proposed approach to the course that should be taken following the quashing order.
The claimant's response highlighted his case that the GMC has no jurisdiction to consider the allegation under rule 4(1) of the 2004 Rules at all following any quashing order. It is his case, as amplified by Mr Spencer on his behalf, that the GMC is estopped from so doing, irrespective of any public interest in such a consideration, by virtue of the rules themselves. I will come to that point in a moment.
The claimant's primary position, however, is that it is unnecessary for this court to adjudicate upon the question whether the GMC is entitled to have the complaint considered by another registrar following the quashing of the original decision. The foundation for that submission is the contention that no rational registrar could decide to waive the five year rule in the circumstances of this case. If that is right, even if the matter goes before another registrar in future, the result is likely to be a refusal to permit the complaint to proceed. Accordingly, no adverse decision is likely to be taken against the claimant and there will not be any need for further court proceedings. The claimant maintains therefore that no decision is necessary for today. A quashing order is sufficient and he raises the prospect of delay consequent on any appeal from a decision taken.
Both the GMC and the interested party invite me to make a decision today. In circumstances where the court is seized of the matter, there has been a failure to agree a pragmatic timetable for addressing it, and it has been made clear that the claimant disputes the GMC's jurisdiction to consider this question, the court ought to answer this question in order to avoid delay and potential unnecessary costs in future.
Although there is some attraction in simply leaving this question to be decided in future proceedings, the court is now seized of the matter and it is clear that there is significant disagreement between the parties about the GMC's jurisdiction. The disagreement will lead to uncertainty as to the position of the GMC and the particular registrar who may, in future, deal with a consideration of referral of the allegation. In my judgment, a failure to address the question today is likely itself to cause delay, and potentially unnecessary costs in future. The proper course is therefore to address the question of jurisdiction today.
That will allow the parties to focus on the substantive merits, of their respective positions so far as future decisions are concerned. I turn, therefore, to the second issue, the question of jurisdiction to consider the referral question afresh.
Rule 4(1) of the 2004 Rules provides that an allegation shall initially be considered by the registrar. There are limits on such consideration dealt with elsewhere in rule 4 but its wording makes it clear that there is a mandatory duty on the registrar to consider an allegation in the first instance. In support of his argument that the GMC's jurisdiction is restricted, and that the circumstances in which reconsideration or review can take place are circumscribed, Mr Spencer relies on rule 12.
Rule 12 provides for certain circumstances where decisions made by the registrar may be reviewed. The relevant decisions are identified at paragraph 12(1). I agree with Mr Spencer that such decisions are not limited to decisions not to refer an allegation where the public interest may well be engaged, but include, in particular at rule 12(1)(c) a decision to issue a warning which would be adverse to the practitioner involved, where the grounds for review would be prevention of injustice to the practitioner. The Rules, as Mr Spencer indicated, and I agree, are balanced in this respect.
I also agree with Mr Spencer that the decision taken pursuant to rules 4(1) and 4(5) that an allegation should proceed is not a decision that is covered by rule 12(1) and that can be reviewed by the registrar. The question what is the effect of that conclusion? Mr Spencer says, in effect, rule 12 occupies the ground, and...
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