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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gwynn, R (on the application of) v The General Medical Council [2007] EWHC 3145 (Admin) (28 November 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/3145.html Cite as: [2007] EWHC 3145 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		28 November 2007

MR JUSTICE SULLIVAN:

1. Introduction
2. The claimant is a Consultant General, Vascular and Breast Surgeon, who is currently the subject of disciplinary proceedings before the defendant's Fitness to Practise Panel ("the Panel"). The allegations against the claimant are that his fitness to practise is impaired by reason of his deficient professional performance in respect of his conduct of breast surgery on ten patients over a period from September 1997 to December 2003, and in the case of an eleventh patient, CL, that his fitness to practice is impaired by reason of misconduct following such surgery.
3. The hearing before the Panel, in respect of the complaints made by the eleven patients, began on 29 October 2007. An application was made on behalf of the claimant that the proceedings in respect of five of the patients, SG, VS, JW, JA and CL, should be stayed. The Panel rejected that application on 31 October.
4. The claimant's application for permission to apply for judicial review of the defendant's decisions that the allegations in respect of the five patients should be proceeded with, and the Panel's refusal to stay those allegations, was considered on the papers by Charles J on 6 November. He ordered a "rolled up" hearing of the application for permission to apply for judicial review with the substantive hearing to follow immediately if permission was granted, and stayed proceedings before the Panel in respect of the five patients in the meantime. The judicial review hearing was originally to be on 21 November, but was subsequently re-listed for Friday 23 November.
5. On 14 November the hearing before the Panel was adjourned until Monday, 26 November, to await the outcome of the judicial review proceedings. At the conclusion of the hearing on Friday, 23 November, I granted permission to apply for judicial review, allowed the substantive application, quashed the relevant decisions of the defendant and the Panel, and ordered that there should be a stay on the proceedings in respect of the five patients. In view of the time constraints, I gave only a summary explanation of the reasons for my decision and said that I would give the full reasons today, Wednesday, 28 November.
6. Those full reasons are as follows:

CL

7. CL was operated on by the claimant on 31 March 2001. She had a left mastectomy. In her letter of complaint to the GMC, dated 28 October 2002, she said that during a follow-up appointment in April 2001 the claimant had inappropriately (but not indecently) put his hand on her bare waist. When she consulted him again in June and July 2002 in respect of lumps on the site of her amputated breast, he operated on her but made inappropriate and insensitive comments: that she would spend the rest of her life having lumps cut out, that she was going to die of cancer, and that treatment was only delaying the inevitable.
8. CL's letter of complaint was considered by a caseworker, Janice Powell, in the defendant's Fitness to Practise Directorate. Her letter, dated November 2002, said (in part):
10. "Your file has been passed to myself, Janice Powell, to explain the role of the GMC and the procedures available to you.
11. I should initially explain what we can and cannot do. Our role is to licence doctors to practise in the United Kingdom. Although we provide guidance to doctors on what constitutes good medical practice, not all alleged breaches of that guidance will warrant formal action by us. We have powers to take action against a doctor only where his or her behaviour justifies restricting or removing his or her registration. In legal terms his behaviour is described as 'serious professional misconduct' or 'seriously deficient performance'.
12. We understand why you have written to us and the distress this must have caused, however, your complaint has been carefully considered and we have decided that it is not a matter, which would justify action by us at this stage. The GMC has a specific role and our powers are whether we should suspend, erase or put conditions or a doctor's registration.
13. There will, however, be complaints against doctors about which we are not best placed to deal, simply because it would be inappropriate to impose the sanctions described above. Nevertheless, patients have a right to expect their complaint will be investigated and resolved.
14. It is not clear whether your treatment was carried out partly under the NHS and partly privately but we suggest you initially complain about Dr Gwynn's treatment of you through local procedures, which is different in each case."
15. The letter then gives relevant addresses and explains in outline the appropriate local complaint procedures. Having done so, the letter continues:
16. "Once you've made a complaint through the above procedures and if at the end of the process you are still not satisfied that your concerns about Dr Gwynn have been fully addressed, please do come back to us. We will then consider whether any further issues come to light that we would be justified in looking into. We would need full details of your complaints and copies of all documents arising from both investigations.
17. We do not, therefore, intend to take any further action at this stage. We will, however, keep a record of your complaint should we receive any further concerns about this doctor.
18. Thank you for bringing this matter to our attention."
19. The claimant was not informed of this complaint by the defendant. He was first made aware of it when the defendant sent a letter, dated 4 April 2007, to his solicitors, MDU Legal Department. The letter enclosed copy documents "for provision to the Case Examiner". Those documents included draft allegations and a witness statement, dated 16 March 2007 by CL. A "Rule 7" letter, dated 13 April 2007, was subsequently sent by the defendant to the claimant giving him an opportunity to respond to the allegations made by CL in her witness statement.
20. At the hearing before the Panel, on 31 October, the defendant did not explain how the complaint made in 2002 had been resurrected in 2007. In response to my request for disclosure, the defendant explained both the procedural background to the letter dated 1 November 2002, and the process which led to the resurrection of the complaint in 2007. Under the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 ("the 1988 Rules") as amended by the General Medical Council (Fitness to practise Committees) (Amendment) Rules Order of Council 2002 ("the 2002 Rules"), where a complaint was received by the Registrar and it appeared to him:
21. "that a question arises where conduct of a practitioner constitutes serious professional misconduct the Registrar shall submit the matter to a medical screener." (Rule 6(1))
22. CL's complaint was considered by a caseworker in accordance with the defendant's "Fitness to Practise Casework Manual" (the Manual). The Manual was issued by the Fitness to Practise Directorate under the authority of the Registrar. The Manual explained the procedures for screening cases which had been introduced in August 2001:
23. "2. The aim of the screening procedures is to allow us to focus our energies on those core cases which genuinely give rise to questions about whether a doctor should be allowed to continue to practice unrestricted. Less serious cases will be closed as soon as possible and the enquirer referred to a more appropriate complaint-handling body.
25. 3. This should reduce the amount of cases on which we spend a great deal of time and effort and we should therefore be able to pursue the remaining more serious cases with greater speed and rigour. …
26. 4. The workflow and procedures are based on a number of underlying principles. In particular, the procedures are intended to be straightforward, consistent and efficient.
27. 5. Cases are to be moved as quickly as is practicable to the point at which appropriate decisions can be made by an appropriate member of staff/Council member ...
28. 6. We should always bear these principles in mind when dealing with a case - and we should not be afraid to use our discretion where 'process' is getting in the way of our meeting these principles. Although our work is sometimes process-orientated, we should not lose sight of the fact that we are here, as the logo says, to protect the public."
29. Although the screening process is a "tick box" exercise, the Manual explains that:
30. "The structure and order of these questions is not arbitrary, it reflects the logic that we must follow if we are to ensure that appropriate decisions are made on cases, as quickly and efficiently as possible, and in a way that is consistent across the section and through time.
31. 17. It is essential that the trail of tick-boxes (from question 1.1 onwards) are completed and that caseworkers follow the instructions (in italics, on the right-hand side of the page) about which question to go to next. The rigour of completing the SDF 1 provides assurance to the caseworker that the relevant questions have been asked in assessing the case. It also gives such an assurance to anyone else who may handle the file in future - whether they be other GMC staff members, or indeed, those outside the GMC who may have cause to question our decisions."
32. Paragraph 38 of the manual explains that some complaints may be appropriate for "initial screening":
33. "The purpose of the stage is to ensure that we have the option to refer to the screeners very early on those treatment/clinical judgment cases which appear to raise no issue of SPM [Serious Professional Misconduct] or SDP [Seriously Deficient Performance]. Because these may require some medical knowledge in order for a definitive judgment to be made, it would be entirely inappropriate for us to close the case in the office without referral to the screeners. However, a quick screen at this stage may enable us to identify a number of cases which were never going to lead to GMC action, but which would otherwise have detained us in seeking consent, further information and possibly further evidence, before we refer the matter to the screeners."
34. In a footnote on "Closing cases", the Manual emphasises the need for an accurate record to be kept of the date of closure when a case is recorded as "closed", following completion of the screening process. The Case Closure form records CL's case as having been closed on 1 November 2002. Why was it resurrected? In a witness statement, dated 23 November 2007, Deborah Nicholson, one of the defendant's Investigating Officers, says that when she was allocated the claimant's case in December 2006 she reviewed the file and found the 2002 letter of complaint. She also found the case closure form and the defendant's letter to CL, dated 1 November 2002. She says:
35. "As the case had not been investigated previously and in light of the other complaints being investigated against Mr Gwynn I discussed the matter with my line manager, Peter Swain, an Assistant Registrar. It was decided that the matter should be investigated further."
36. She then explains that she contacted the complainant who confirmed that she wished to pursue her complaint, and referred the matter onto the defendant's solicitors, who took a statement from the complainant in due course and obtained an expert report.
37. On behalf of the claimant, Mr Balcombe QC submitted that, having closed the case in 2002, the defendant had no power to resuscitate it, and that even if such a power existed it was unfair/unreasonable to resuscitate it in 2007, so that it was referred to the Case Examiners and the complainant first had notice of the complaint in April 2007, some four-and-a-half years after it was made in October 2002, and some four-and-three-quarter years after the most recent conduct complained of, in June/July 2002. He relied on the authority of Brabazou-Drenning v the United Kingdom Central Council for Nursing, Midwifery and Health Visiting CO/490/2000, a decision of the Divisional Court. In that case the claimant was told in a letter, dated 27 June 1997, that the defendant's Preliminary Proceedings Committee had decided to take no action in respect of an allegation of non-registration between the end of August 1996 and April 1997. Two years later the complainant was told that she would face a disciplinary hearing before the defendant's Professional Conduct Committee in respect of six charges of misconduct. The sixth charge was that she had failed to be registered between the end of August 1996 and April 1997; the matter in respect of which she had earlier been told that no action would be taken. Clearly issues of legitimate expectation arose on the facts of that case, but Elias J, with whom Rose LJ agreed, said this in paragraph 31:
38. "In my judgment, quite independently of the question of legitimate expectation, it seems to me that once the Committee has made its ruling and has determined that there should be no further action taken in respect of that charge, then unless there is some misrepresentation, or unless they are acting under some fundamental misconception of the true position, then they are bound by that determination. I do not think it is open to them to resuscitate it at will, or because they have discovered other charges and they wish to strengthen the case in some way against the individual. If I am wrong about that, then I have no doubt, in any event, that it would be unfair for the matter to be resuscitated in the circumstances of this case, particularly given the unambiguous and unequivocal way in which the decision not to pursue it had been notified to the appellant. The appellant did have a substantive legitimate expectation that the matter would not be reopened, and there was no countervailing public interest which justified the Committee frustrating that expectation".
39. On behalf of the defendant, Ms Morris sought to distinguish that decision on the basis that here there was no legitimate expectation since the claimant had not been told of the decision on 1 November 2002, that the decision was, in any event, a preliminary decision made by a caseworker, rather than the Registrar or Screener, and that the decision letter expressly reserved the right to reopen the matter if CL was not satisfied having followed the local complaints procedures. The decision in the letter was simply not to take any further action "at this stage."
40. In view of the limited time available, on 23 November, it was not possible to establish the detailed provenance of the Manual. In practice, the duties of the Registrar are delegated to the Deputy and Assistant Registrars and to other authorised employees of the Defendant. The procedures set out in the Manual were issued by the Fitness to Practise Directorate under the general authority of the Registrar. The screening process was intended to filter out "the less serious cases" and to close them as quickly as possible, thus enabling the defendant to focus its energies on those cases which did "genuinely give rise to questions about whether a doctor should continue to practice unrestricted".
41. The Registrar's duty under rule 6(1) of the 1988 rules was clear. If, having received a complaint, it appeared to him that a question arose whether the conduct of the practitioner constituted serious professional misconduct, he had no discretion, he was required to submit the matter to a Medical Screener. If the complaint did not raise any question of serious professional misconduct, it was not so referred and that was the end of the matter.
42. The rules did not make any provision for a "don't know" or "complaint suspended", or "provisional decision", by the Registrar in response to a complaint. When considered in the light of the duties imposed on the Registrar by the 1988 Rules, he must have intended that the screening process, carried out under his general authorisation, would dispose of those complaints where, in the judgment of a caseworker authorised by him to carry out that process, it did not appear that there was any question of serious professional misconduct. If the caseworker was in doubt, because the complaint "may require some medical knowledge in order for a definitive judgment to be made", then the matter could be referred to the Screeners (see paragraph 38 of the Manual, above). In these circumstances the "Case Closure Form" means what it says. So far as the defendant is concerned the case is closed, not placed in some form of suspended animation, capable of being resuscitated at the instigation of some other GMC employee authorised by the Registrar.
43. The letter dated 1 November 2002 set out the only circumstance in which the case might be reopened by the defendant: if the complainant having gone through the local procedures was not satisfied with them and came back to the defendant. That did not happen. It is clear from Ms Nicholson's witness statement that the "closed" case was reopened at her instigation. In my judgment, the defendant, having closed the case, had no power to reopen it at its own instigation. Even if it had such a power, the power would have to be exercised reasonably and fairly. The claimant was not told of the complaint made in October 2002 until April 2007. If the Registrar had considered the complaint raised a question of serious professional misconduct, then he would have referred the matter to the Medical Screener. Under the 1988 Rules, the Medical Screener would then have decided whether or not to refer the matter to the Preliminary Proceedings Committee. Rule 6(6) of the 1988 rules provided that:
44. "In any case where the medical screener decides not to refer a case to the Preliminary Proceedings Committee, the practitioner and the person from whom the complaint or information was received shall be informed but shall have no right of access to any document relating to the case submitted to the Council by any other person."
45. Since the Registrar's decision that no question of serious professional misconduct arose was (subject to judicial review) final, there was no need to put the practitioner on notice that a complaint, which had not progressed beyond the Registrar, had been made against him. If the matter proceeded further, because in the Registrar's view a question of serious professional misconduct arose, then the 1988 Rules ensured that the practitioner would be notified of the complaint by the defendant. Against this statutory background, it was manifestly unfair for the defendant to resuscitate a complaint, which had led to no further action, more than four years after it had been closed, and to give the first notification of the complaint to the claimant in April 2007, some four-and-three-quarter years after the matters complained of.
46. On behalf of the defendant, Ms Morris submitted that the question of unfairness was adequately dealt with by paragraph (5) of rule 4 of the current rules, The General Medical Council (Fitness to Practise) Rules Order of Council 2004 ("the 2004 Rules"). Since paragraph 4(5) is in issue in the cases of the other four patients, it is sensible to set out rule 4 in full at this stage. Under the heading: "Initial Consideration and referral of allegations", rule 4 provides:
47. "4(1) An allegation shall initially be considered by the Registrar.
48. (2) Subject to paragraph (5) and rule 5, where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and lay Case Examiner for consideration under rule 8.
49. (3) Where-
50. (a) the Registrar considers that an allegation does not fall within section 35C(2) of the Act; or
51. (b) in the case of an allegation falling within paragraph (5), the Registrar does not consider it to be in the public interest for the allegation to proceed,
52. he shall notify the practitioner and the maker of the allegation (if any) accordingly.
53. (4) The Registrar may, before deciding whether to refer an allegation, carry out any investigations as in his opinion are appropriate to the consideration of-
54. (a) whether or not the allegation falls within section 35C(2) of the Act; or
55. (b)the practitioner's fitness to practise.
56. (5) No allegation shall proceed further if, at the time it is first made or 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."
57. Ms Morris submitted that since the complainant was notified of the complaint within five years of the last matter complained of, in June or July 2002, there could be no unfairness. I do not accept that submission. Rule 4(5) effectively imposes a time limit on complainants to the GMC. They have to make or bring their complaints to the attention of the GMC within five years of the last event giving rise to their allegations. While rule 4 does not impose any specific time limit on the Registrar, it implicitly requires him, subject to paragraph (5), to refer all allegations falling within section 35C(2) of the Medical Act 1983 ("the Act") within a reasonable time. What is a reasonable time will depend on all the circumstances including, for example, the need to make investigations under paragraph (4) of rule 4; the need to give priority to apparently urgent cases; the volume of complaints generally, etc. What rule 4 clearly does not envisage is that the Registrar's staff, having considered and closed a case, can then wait for well over four years before reopening it and referring it to the Case Examiners. In this context, some assistance can be derived from rule 14 of the 1988 rules, which dealt with the position where the Medical Screener decided that there should be no reference to the Preliminary Proceedings Committee, or the Committee decided that there should be no reference to the Professional Conduct Committee:
58. "…the Registrar, at any time within the two years following that determination or decision, receives information that the practitioner has been convicted in the British Isles of a criminal offence or has been convicted of an offence elsewhere which, if committed in England or Wales, would constitute an offence or receives information or a complaint as to the practitioner's conduct.
59. (2) Where this rule applies, the medical screener may direct that the original conviction or complaint be referred, or referred again, to the Committee, as well as the latest conviction, information or complaint"
60. It is difficult to see how a longer period than two years could be justified in cases where the defendant's initial view was that there was no question of serious professional misconduct to be referred to the Medical Screener.
61. As Mr Balcombe pointed out, the Defendant's approach would enable it to circumvent rule 4(5). Having received a complaint just within the 5 year period, the defendant could then put the case into "cold storage" for four or more years, before notifying the practitioner of the complaint.
62. For these reasons I conclude that:

(1) 63. CL's case having been "closed" by the defendant, on 1 November 2002, in a screening process authorised by the Registrar, it could not be reopened by, or on behalf of, the Registrar.

(2) 64. If there was a power to reopen, it could lawfully be exercised by the defendant only in the limits circumstances described in the decision letter, dated 1 November 2002, and not simply at the instigation of the defendant.

(3) 65. Even if the defendant did have power to reopen the case at its own instigation, it would have had to do so within a reasonable time. While there might be arguments in some cases as to whether or not a delay was, or was not, reasonable, to reopen this case, after it had been "closed" for over four years, was plainly an unreasonable exercise of the Registrar's decision making function - to refer, or not to refer, allegations to the Case Examiners under rule 4 - given the defendant's over-arching obligation under the Rules to resolve complaints within a reasonable time in the interests of both practitioners and their patients.

63. The other four cases
64. The cases of the other four patients, SG, VS, JW and JA, are similar in that the defendant purported to apply rule 4(5) in each case. I say "purported to apply" because the defendant accepts that in each case there was a procedural irregularity in that all of the complaints were made to the defendant after the 5 year period had elapsed, but in each case the Registrar referred the allegations to the Case Examiners without considering whether it was "in the public interest, in the exceptional circumstances of the case, for it to proceed" ("the rule 4(5) question"). Subsequently, the Registrar attempted to rectify the irregularity by considering the rule 4(5) question, in the cases of JW, VS and JA after their allegations had been considered by the Case Examiners, who had referred them to the Fitness to Practise Panel ("the FTP"), and in the case of SG, after her allegations had been referred to the Case Examiners, but before the Case Examiners had decided whether to refer them to the FTP.
65. Mr Balcombe challenged the Registrar's attempts to rectify the position on two grounds: procedural and substantive. Procedurally, he submitted that the Registrar, having referred the matter to the Case Examiners was functus officio and had no jurisdiction to make a further referral. Alternatively, it was a fundamental requirement of the 2004 Rules that a rule 4(5) decision was made at the outset, before an allegation was referred to the Case Examiners:
66. "An allegation shall initially be considered by the Registrar… no allegation shall proceed further if..."
67. Secondly, Mr Balcombe submitted that even if there was power to rectify the procedural irregularity, the Registrar's attempts to do so were flawed (the "substantive ground"), because they failed properly to apply the correct test, and failed to have regard to material considerations, and/or because they had regard to considerations which were immaterial for the purposes of rule 4(5).
68. Since I have concluded that the claimant's challenge on the substantive ground succeeds in each of the four cases, it is unnecessary for me to consider the procedural ground of challenge. I will deal with each of the four cases in turn on the assumption, and I emphasise that it is no more than an assumption, that the Registrar had power, in principle, to remedy the admitted irregularity.
70. JW
71. JW's complaint related to an operation carried out by the complainant on 11 May 2000. Her complaint was made to the defendant on 9 August 2005, some three months after the expiration of the 5 year period. The Registrar referred the matter to the Case Examiners in December 2005, and on 30 January 2006 the claimant was notified under rule 8 that the Case Examiners had decided to refer the matter to the FTP Panel. Although formal notice of the hearing before the Panel was given on 28 September 2007, the hearing date had been provisionally fixed as early as January 2007. In a letter, dated 26 October 2007, faxed to the defendant on the same day, MDU asked whether a decision under rule 4(5) had been taken in JW's case.
72. At 15.39 on Friday, 26 October, Janet Gray, a Principal Legal Advisor at the GMC, sent an email to Jackie Smith, one of the GMC's Assistant Registrars:
73. "Following on from our earlier conversation I attach a memo to assist you in making a decision on this case on the 5 year rule.
74. As you are aware this case begins at FTP on Monday and a decision on this is required today."
75. The memorandum set out the text of rule 4(5), summarised the background to the case and said that in considering whether it is:
76. "in the public interest in the exceptional circumstances of this case for it to proceed regard should be had to the following relevant circumstances".
77. Those circumstances were: timing, gravity of the allegation, continuing risk, availability of evidence, and public interest. The memorandum concluded:
78. "Ultimately it is a decision for you but I hope the above information assists."
79. At 16.06, on 26 October, Jackie Smith emailed Janet Gray:
80. "I have considered this and in respect of [JW] we should waive the 5 year rule".
81. She dictated her reasons to Ms Gray, who typed them up. At 17.01 Ms Smith approved the memorandum of her decision (save for one typo) saying that:
82. "it reflects my reasons and rationale for waiving the 5 year rule."
83. The typed memorandum of her decision was in these terms:
84. "I am asked to make a decision on the 5 year rule in this case.
85. I have taken into account the circumstances of the complaint and the relevant factors as set out below:

89. Timing

86. The matter came to the attention of the GMC just outside the 5 year period - by 3 months. Ms [JW] could have brought the complaint to the GMC before but given she was represented by solicitors (who may have been waiting for the civil case to conclude) I do not believe she should be unduly criticised for not doing so.

91. Gravity of the allegation

87. I believe the allegations against Mr Gwynn are serious given his position as Consultant vascular and breast surgeon, I have noted the comments made by the expert instructed by Irwin Mitchell on this issue. [the complainant's solicitors]

93.

94. Continuing risk

88. I am aware that this is not a case of a single clinical incident, Irwin Mitchell highlighted 4 other complaints of a similar nature against Mr Gwynn in their referral letter and this is an important factor in my view. I believe Mr Gwynn may pose an ongoing risk and this needs to be investigated further.

96. Availability of evidence

89. I am conscious that this complaint has already been considered by the Trust and Mr Gwynn will have had an opportunity to comment on this during the course of their inquiries. I am also mindful that an expert report has been commissioned and the relevant medical records are likely to be available either from Irwin Mitchell or the Trust themselves.
90. The availability of this evidence mitigates any prejudice to Mr Gwynn's ability to defend himself if the 5 year rule is waived and I have taken this into account when making my decision.

99. Public interest

91. I have taken account of the wider public interest and the allegations against Mr Gwynn do warrant further investigation.

101. Decision

92. In respect of JW's complaint against Mr Gwynn we should waive the 5 year rule."
93. Mr Balcombe submitted that the Memorandum had all the hallmarks of a "rushed job" and contained a number of errors. It is unnecessary to explore his criticisms of the memorandum in any detail because I accept his primary submission: that there is no indication in the memorandum that the rule 5(4) test was applied. If one asks the question, "What in Ms Smith's opinion were 'the exceptional circumstances of the case'?" There is no answer to be found in the memorandum, which in her own words reflected her reasons and rationale for waiving the 5 year rule.
94. The factors considered in the memorandum are those set out in paragraph 9 of an Aide Memoir prepared by the defendant's Fitness to Practise Directorate entitled:
95. "THE APPROACH TO BE APPLIED BY THE REGISTRAR WHEN DECIDING UNDER RULE 4(5) OF THE GMC (FITNESS TO PRACTICE) RULES 2004 WHETHER, EXCEPTIONALLY, TO ALLOW AN ALLEGATION TO PROCEED EVEN THOUGH GMC AFTER THE EXPIRY OF THE FIVE YEAR DEADLINE."
96. ("The Aid Memoir")
97. Under the sub-heading "Assessing the circumstances surrounding the lapse of time", paragraphs 6 to 10 of the Aide Memoir say this:
98. "6. First, the Registrar must be guided by the public interest in deciding whether the circumstances surrounding the lapse of time justify permitting the 'late' allegation to proceed. He should not be swayed by the private interests of the maker of the allegation, of any victim(s) of the alleged impairment or of the practitioner.
99.  Second, the Registrar must identify 'exceptional circumstances' relating to the lapse of time.
101.  Third, the Registrar must consider whether the combined power of the public interest and the 'exceptional circumstances' is sufficient to justify permitting the case to proceed. The best recent working guide to the meaning of the expression 'exceptional circumstances' was given by Lord Bingham CJ in 1998:
102. "We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered".
104. That said, 'exceptional circumstances' are intrinsically incapable of firm or exhaustive definition. The expression is used so as to confer a discretion capable of dealing fairly with the special features of each particular case. Over time, the discretion-holder will often develop a practice guiding the exercise of the power. But such a practice must not evolve into rigid rules. It is critical that flexibility is retained and that each case is decided on its own individual merits:
105. "9. In making the assessment, the Registrar should take into account the following considerations:

•    116. the extent of the lapse of time (beyond five years);

•    117. the reason(s) for the lapse of time (for example, the extent to which the nature of the allegation can be criticised for not making it sooner, the extent of the lapse of time after s/he knew or should reasonably have known the relevant facts, problems in clarifying the facts and collecting necessary evidence and the extent to which the alleged impairment has been deliberately concealed by the practitioner or a third party);

•    118. the gravity of the allegation;

•    119. the extent of any continuing unwarranted risk to the public posed by the practitioner (for example, whether the practitioner is still practising within the relevant speciality or at all);

•    120. the extent to which relevant evidence is no longer available due to the lapse of time (for example, because witnesses have died or documents have been destroyed); and

•    121. whether the allegation raises an important point of practice, principle or law.

106. These considerations are not listed in ascending or descending order of weight. Weight is to be assessed by the Registrar from case to case.
107. 10. Since the above is not presented as an exhaustive list, other considerations may arise from case to case. Nor is it suggested that each of these considerations will feature in every case. There will be many different permutations."
108. It is significant that although the memorandum follows the advice in paragraph 9 of the Aide Memoir as to what considerations should be taken into account, it signally fails to identify any "exceptional circumstances", much less does it consider whether the "combined power of the public interest and the exceptional circumstances" is sufficient to justify permitting the case to proceed, in accordance with the advice given in paragraphs 7 and 8 of the Aide Memoir. Ms Morris submitted that the Aide Memoir was merely for guidance, and the only question from Ms Smith was whether it was, exceptionally, in the public interest for CL's case to proceed. The reasons why Ms Smith reached that conclusion were evident from the memorandum: the fact that this was not a case of a single clinical incident, there were other complaints of a similar nature against the complainant.
109. I do not accept that submission. It is not appropriate to either water down, or re-word, the rule 4(5) test: the Registrar must be satisfied that there are circumstances of the case which can fairly be described as "exceptional circumstances", and that proceeding with the case is in the public interest, in those exceptional circumstances. The only reported consideration of rule 4(5) is that of Gibbs J in Peacock v The General Medical Council [2007] EWHC 585 (Admin). Rejecting a submission by the GMC that a judicial review challenge to a decision by the Registrar under rule 4(5) was premature, Gibbs J pointed out in paragraph 25 of his judgment that:
111. "…there would be no later stage in the proceedings when any Tribunal could consider the existence or otherwise of exceptional circumstances, as envisaged by the relevant rule. In my view that is important. The rule under consideration provides a distinct and free-standing safeguard which sets a general prohibition against the pursuit of long-delayed complaints. It provides only for very limited - ie exceptional - circumstances in which such complaints may proceed. I am not persuaded that in the event of a wrong decision under that rule which allows a complaint to proceed further, there would be any satisfactory remedy later in the proceedings."
112. In paragraph 32 he observed that since any complaint relating to fitness to practise must necessarily amount to an allegation of serious professional misconduct before justifying an inquiry as to whether a doctor is unfit to practise, something beyond "serious misconduct" is required to justify waiving rule 4(5). It is possible that the alleged misconduct may be so serious as to amount, of itself, to exceptional circumstances, but if that is the Registrar's view, it should be clearly stated.
113. The Aide Memoir may be unduly restrictive in the advice in paragraph 7 that the Registrar must identify "exceptional circumstances relating to the lapse of time". Rule 4(5) is not so constrained. The exceptional circumstances may, but need not necessarily, relate to the lapse of time. However, the advice that the Registrar must identify the exceptional circumstances of the case is sound, and if the advice in the Aide Memoir had been properly followed the problems in the case of JW (and as will be seen, the other cases of VS, JA and SG) might not have arisen.
114. While the 2004 Rules do not impose a duty to give reasons for a decision to allow, or not to allow, proceedings to continue under rule 4(5), fairness to both the practitioner and the patient requires that reasons are given by the Registrar. The need to give adequate reasons for a rule 4(5) decision is all the more important if that decision is a belated decision in an attempt by the GMC to cure an earlier procedural irregularity. On the assumption that the irregularity is capable of being cured, the practitioner must be able to identify the "exceptional circumstances of the case", which have led the Registrar to conclude that it is in the public interest, in those circumstances, that it should proceed; otherwise he or she will be left with a very real doubt as to whether the underlying reason for the Registrar's decision was not the exceptionality of the case, but a corporate desire on the part of the GMC to avoid the inconvenient or embarrassing consequences of its own procedural errors. In this context, Ms Smith's concluding words: "We should waive the 5 year rule" (emphasis added) are, to say the least, unfortunate. In Haywood v the GMC [2007] EWHC 2236, Burton J said, on 12 March 2007, that the formulation:
115. "We have decided to waive the 5 year rule"
116. was not a sensible one and suggested to the defendant that it should be avoided in the future (see paragraph 19 of his judgment).
117. Ms Smith has explained in an email that she did exercise her own independent judgment and Ms Morris pointed out that there was a distinction between the defendant's case preparation team, who will be responsible for presenting the allegations against the complainant at the Panel hearing, putting pressure on Ms Smith to reach a decision in their favour under rule 4(5), and the fact that Ms Smith was placed under a pressure of time in which to make her decision one way or the other.
118. While I accept that there is such a distinction in principle, on the facts here, Ms Smith was asked to make her decision late in the afternoon of the very last working day before the Panel hearing opened on Monday, 29 October. That her response was given within less than half an hour of receipt of the memorandum from Ms Gray is an indication of the extreme time pressure under which she had been placed. In these circumstances it would be very difficult for any decision-taker to exclude from his or her consideration the impact of the decision on the hearing that was due to commence after the weekend. Absent any identification of the exceptional circumstances of the case, and any express application of the rule 4(5) test, there is the very real possibility that undue weight was given to the imminence of the hearing, and the obvious "public interest" in ensuring that it should not be disrupted by a last minute inability to consider the case of one of the complainants. That, however, is not the rule 4(5) test.
119. For these reasons the challenge to the purported decision under rule 4(5) in JW's case succeeds.
120. VS
121. The allegations against the claimant were made in respect of an operation he performed on VS on 21 September 1999. She made her complaint to the defendant on 19 December 2005. The Registrar referred the matter to the Case Examiners in October 2006 without considering rule 4(5). The claimant was sent a "rule 7" letter, dated 23 October 2006, giving him an opportunity to comment on the complaint, that was, by then, over seven years old. On 8 January 2007, the claimant was notified that the Case Examiners had referred the case to the FTP Panel. On 31 July, the defendant's solicitors, Field Fisher Waterhouse, wrote to the MDU Legal Department as follows:
122. "We write further to the referral of the allegations with regard to [VS] and [JA]. As you will be aware, the events that are the subject of these complaints took place more than 5 years before the matters came to the attention of the GMC. We understand that a Registrar's decision (pursuant to Rule 4(5) of the Fitness to Practice Rules) has not been made with regard to these complaints despite referrals having been made by the Case Examiners.
123. The GMC propose to seek Registrar's decisions as to whether it is in the public interest, in the exceptional circumstances of the case for these complaints to proceed (as required under Rule 4(5)). We appreciate that the defence may wish to make submissions to the Registrar on this issue. We would be grateful for the provision of any such submissions within 7 days of this letter.
124. For the avoidance of doubt, it is the GMC's position that the lack of a Registrar's decision in respect of these two referrals does not invalidate in any way the existing case examiner decisions. Of course if the Registrar decides that the test in Rule 4(5) is not met, the complaints from [JA] and [VS] will not proceed."
125. Ms Nicholson, the defendant's investigating officer, sought advice on the 5 year rule from the defendant's In House Legal Team. Privilege was waived for the purpose of these judicial review proceedings only. The memorandum, dated 9 August 2007, from Mr Ehanire, one of the defendant's solicitors, related to the case of SG (see below). Having set out the background to the case, Mr Ehanire said:
126. "I have been asked to consider the complaint
127. under the 5 year rule and advise whether there
128. are any exceptional circumstances which merit
129. waiving the rule."
130. The memorandum then considered the factors listed in the Aide Memoir: timimg, the gravity of the allegations, availability of evidence, continuing risk, whether the allegation raises an important point of practice, principle or law, and the public interest. Mr Ehanire's view was that there did:
131. "not appear to be any exceptional circumstances justifying the lapse in time."
132. He did not suggest that there was anything exceptional in his view under any of the other headings, for example, the Gravity of the Allegations, or Continuing Risk, and he was of the view that SG's allegation did not raise an important point of practice, principle or law. Under the heading "Public Interest", his advice was as follows:
133. "The Registrar also needs to take into account whether the public interest warrants these allegations being investigated in order to maintain confidence in the medical profession. The effect of Mr Gwynn having to answer charges after such a long time must be taken into account, especially after similar allegations have been referred to the Fitness to Practise Panel. It could be argued that since the allegations by [SG] are similar to the ones he is now facing and that some of these allegations are also dating back to the late 1990s, there is a public interest in having these arguments heard at the same time. In my view, it is in the public interest that the Fitness to Practise Panel should hear all the available evidence in relation to Mr Gwynn's fitness to practise and certainly his treatment of SG would come into this category."
134. The conclusion in Mr Ehanire's advice was:
135. "Having considered all the relevant factors in this case, although the decision is for the Registrar, it seems to me that there are exceptional circumstances for the Registrar to waive the 5 year rule in this case.
136. Although [SG] has not shown good reasons why she did not bring this allegation sooner, it would appear that the treatment she received from Mr Gwynn is very similar to the allegations he is facing in relation to a number of other patients who underwent breast surgery from him. It could be argued that [SG] didn't appreciate the significance of her treatment by Mr Gwynn until she read the newspaper reports years after the treatment. In my view, it is in the public interest in the exceptional circumstances of this case for [SG's] complaint to be considered by the GMC".
137. Pausing there, it will be noted that the advice in paragraph 7 of the Aide Memoir, that the Registrar must identify "exceptional circumstances" was not followed in Mr Ehanire's memorandum. The emphasis is rather on the public interest that the FTP Panel should hear all the available evidence in relation to the claimant's fitness to practise. Where there are similarities between the cases, no doubt it will normally be desirable than one Tribunal should hear all the available evidence, but that is not the rule 4(5) test. Although there were "exceptional circumstances" in Mr Ehanire's view, he did not explain what they were. Having received this advice, Ms Nicholson emailed Anna Neill, an Assistant Registrar:
138. "The case of Mr Gwynn was passed to the CTP [Case Presentation Team] after an initial investigation and referral was made in respect of 5 allegations. However during the preparation of our case a number of other similar allegations came to light that were referred to the Case Examiners.
139.  The case of [SG] has not yet been referred and I would be grateful if you would consider whether the five year rule should be waived in these circumstances.
141.  The cases of [VS] and [JA] have been referred by the Case Examiners with no consideration of the 5 year rule.
142.  I have obtained advice from the GMC on your behalf regarding the application of the five year rule. This relates to the case of [SG]. If you require further legal advice regarding [VS] and [JA] please let me know. However the issues surrounding these two complaints are virtually identical. We did put the MDU on notice of the issues concerning the five year rule on 31 July and they have submitted no comments.
143.  I have printed off the relevant documents for your consideration. The case is so large on Siebel it is really difficult to navigate and retrieve papers.
144. If you require any additional information or
145. Documentation, please do not hesitate to contact
146. me."
147. Ms Neill's replied by email on 29 August:
148. "Hi Debbie,
149. Further to our earlier discussion I attach the decision on the five year rule in relation to complaints made by [SG], [JA] and [VS]. I have waived the five year rule in all cases in light of the advice from IHLT [In-house Legal Team]. I consider that taken together the allegations form a pattern of poor performance and it is in the public interest for the issues to be considered together."
150. Ms Neill's decisions in the case of VS and JA are dated 29 August 2007. Her decision in respect of the case of SG is dated 23 August. In the case of VS the decision summarises the background, sets out the terms of paragraph (5) of rule 4, and continues:
151. "I direct myself, firstly, to the fact that I must be guided by the public interest in deciding whether the circumstances surrounding the lapse of time justify permitting this allegation to proceed after a period of five years.
152. The second element which I have to find to justify waiving the so-called "five year rule" is exceptional circumstances which were defined by Lord Bingham CJ in R v Kelly..."
153. The passage in the Aide Memoir is then set out. Further background to the case is given, and the factors referred to in the Aide Memoir are considered one by one, as follows:
155. "Timing
156. The complaint is outside the 5 year period and that fact weighs against proceeding. There do not appear to be any exceptional circumstances justifying the lapse in time in bringing this complaint. The complainant was clearly unhappy with the treatment and indeed underwent further surgery.
158. Gravity of the allegations
159. The GMC have obtained an Expert Report from Mr Goldin, a Consultant Plastic Surgeon dated 30 December 2006. The criticisms made by Mr Goldin relate to Mr Gwynn's delegation of the first operation to a junior doctor which resulted in Mr Gwynn having to repeat the operation 3 weeks later, and in relation to Mr Gwynn's failure to refer the patient to an expert in reconstruction and left it to the patient to arrange for a referral via her GP. The allegations made by [VS] of substandard treatment are similar to those made by other patients of Mr Gwynn and together they form a pattern of substandard performance that raise serious concerns about the fitness to practise of Mr Gwynn.
160. Continuing risk to the public
161. I understand that Mr Gwynn is still practising but in my view since there are currently fitness to practise panel proceedings which are proceedings against him, this would deal with any continuing risk of the practitioner.
162. Availability of the evidence
163. It appears that there are adequate medical records of [VS's] operations and there is also expert evidence given by Mr Goldin, in relation to the treatment of [SG]. It could therefore be argued that there is sufficient evidence available to prove any of the charges against the doctor despite the lapse of time.
164. Important points of practise or principle
165. I do not consider that an important point of principle or practice arises in this case.
166. Public interest
167. Although no specific definition of public interest exists, it may include but is not limited to maintenance of public confidence in the profession, declaring and upholding proper standards of conduct and protection of members of the public. These need to be balanced against the practitioner's own interest when considering the wider implications of the public interest and proportionality in each regard.
168. Mr Gwynn has been referred to an FTP Panel facing similar charges to this complaint. I consider that since the allegations by [VS] are similar to the ones he is now facing and that some of these allegations are also dating back to the late 1990s, there is a public interest in having these arguments heard at the same time. In my view, it is in the public interest that the Fitness to Practise Panel should hear all the available evidence in relation to Mr Gwynn's Fitness to Practise.
169. Conclusion
170. Taking all the above matters into consideration, although [VS] has not shown good reasons why she did not bring this allegation sooner, it would appear that the treatment she received from Mr Gwynn is very similar to the allegations he is facing in relation to a number of other patients who underwent breast surgery from him. I conclude that it is in the public interest in the exceptional circumstances of this case for [JS's] complaint to be considered by the GMC."
171. Perhaps unsurprisingly Ms Neill's approach closely followed the approach and reasoning in the memorandum from the defendant's In House Legal Team. Although the need to find exceptional circumstances is expressly acknowledged in the memorandum, the decision fails to identify which of the circumstances discussed under the various headings were, either individually or collectively, considered to be exceptional. Under "Timing" it did not appear to Ms Neill that there were any exceptional circumstances. She also concluded that any continuing risk would be dealt with by the proceedings before the Panel in respect of other complainants, and no important point of principle or practice arose. It is not suggested that the fact that it could be argued that there is sufficient evidence available despite the lapse of time since the complaint, was in any way exceptional. While it was concluded that the allegations, together with others, formed a pattern of sub-standard performance raising serious concerns about the claimant's fitness to practise, that is not, of itself, an exceptional circumstance, since a case will not come before a Fitness to Practise Panel unless there are serious concerns about the practitioner's fitness to practise: see the observations of Gibbs J in Peacock v GMC (above). The underlying rationale for the decision appears to be contained in the discussion of the public interest.
172. Ms Neill concluded that it was in the public interest that the Fitness to Practise Panel should hear all the available evidence in relation to the claimant's fitness to practise. While the reasonableness of such a conclusion could not be questioned in case management terms - it will generally be in the public interest for a Fitness to Practise Panel hearing allegations of unfitness to practise to hear all, rather than merely some, of the evidence relating to that issue - that is not the rule 4(5) test, nor is it the Registrar's role under rule 4(5) to decide what allegations should, or should not, go before the Fitness to Practise Panel. The Registrar's function under rule 4(5) is to decide, after his initial consideration of an allegation, whether it shall proceed further, ie, whether it should be referred to the Case Examiners.
173. It is then for the Case Examiners to decide whether an allegation should be referred for determination by a Fitness to Practise Panel under rule 8(2)(d). Having referred the matter to the Case Examiners the Registrar is not concerned with whether the allegation goes forward to the FTP Panel, much less is the Registrar concerned with the question whether the allegation should be heard by the Fitness to Practise Panel, together with other allegations which the Case Examiners have referred to the Fitness to Practise Panel. As a case management decision, ensuring all the available evidence was available to the Panel hearing that had long been arranged for October, the Assistant Registrar's decision was impeccable, but it illustrates the difficulties inherent in attempting to rectify procedural irregularity at such a late stage in the proceedings: after an allegation has been referred to the Case Examiners who have referred it to the FTP Panel, and after the Panel has made arrangements for a hearing.
174. In such circumstances there is a real danger that unless the exceptional circumstances are very clearly identified by the Registrar, the Registrar will be placed in the impossible position of deciding whether it is in the public interest that a case, which has already been referred by Case Examiners to the Fitness to Practise Panel, and in respect of which a hearing is pending or imminent, should be considered by the Fitness to Practise Panel, or be withdrawn from the Panel's consideration at a late stage. If the question is considered in that way (ignoring the need to find exceptional circumstances) there can be only one answer: the case should proceed. That is what appears to have happened in the case of VS. The claimant's challenge to the Assistant Registrar's decision in the case of VS therefore succeeds.
175. JA
176. I can deal very shortly with the allegations in respect of JA because the reasoning in Ms Neill's decision is the same (save for the details of the complaint and the available evidence) as that in the case of VS above. The conduct giving rise to the allegations by JA occurred in the consultation with the complainant on 11 October 2000, and an operation by him on 22 March 2001. JA's complaint to the GMC was made on 18 July 2006. The Registrar referred the allegations to the Case Examiners in May 2007, without considering rule 4(5). The "rule 7" letter giving the complainant an opportunity to comment on the allegations is dated 14 May 2007. On 20 June 2007, the complainant was notified that the Case Examiners had referred the matter to the FTP Panel. Thereafter the process was, as described in the case of VS and the Assistant Registrar's decision, dated 29 August 2007, was flawed for the same reasons.
177. SG
178. The last event giving rise to SG's allegations against the claimant was an operation on 2 September 1999. Her complaint to the GMC was made on 16 March 2007, some seven- and-a-half years later. The Registrar referred the allegations to the Case Examiners without considering rule 4(5) and the "rule 7" letter to the claimant, giving him an opportunity to comment on the allegations is dated 18 June 2007. In this case the procedural irregularity was noticed by the defendant before the allegations were considered by the Case Examiners.
179. SG's case was not mentioned in Field Fisher Waterhouse's letter of 31 July 2007, but advice was sought from the defendant's In House Legal Team, which resulted in Mr Ehanire's memorandum, dated 9 August 2007 (see above). Ms Neill's decision, dated 23 August 2007, in SG's case, follows the same pattern as the decisions in the cases of VS and JA, and essentially the same conclusions are reached in respect of the list of factors in paragraph 9 of the Aide Memoir. Thus, for example, in respect of timing it was concluded that:
180. "There do not appear to be any exceptional circumstances justifying the lapse of time in bringing this complaint."
181. No important point of principle or practice arose, etc.
182. Under the heading "Public Interest" the reasoning is essentially the same. The second paragraph under that heading being as follows:
183. "Mr Gwynn has been referred to a FTP Panel [Fitness to Practise Panel] facing similar charges to this complaint. I consider that since the allegations by [SG] are similar to the ones he is now facing and that some of these allegations are also dating back to the late 1990s, there is a public interest in having these arguments heard at the same time. In my view, it is in the public interest that the Fitness to Practise Panel should hear all the available evidence in relation to Mr Gwynn's fitness to practise. "
184. The decision suffers from the same defects as the decisions in the cases of VS and JA, but the focus on the impending hearing before the FTP Panel, and the Assistant Registrar's view as to what evidence the Panel should hear, is all the more striking, because this was a case where the allegations against the claimant had not been considered by the Case Examiners. Under the 2004 Rules it was for the Case Examiners, not the Registrar, to decide whether the Fitness to Practise Panel should hear the allegations in SG's case. The Registrar's only function under rule 4(5) was to decide whether there were any "exceptional circumstances of the case", and if so whether it was in the public interest, in those circumstances, that the allegations should proceed further, ie, that they should be referred to the Case Examiners. Given the delay in making the complaint (seven-and-a-half years, not eight or nine years, as stated in the Assistant Registrar's decision), and the fact that the Assist Registrar was making her decision nearly eight years after the most recent conduct complained of, it was particularly important that the rule 4(5) test was properly applied and the "exceptional circumstances" relied on by the Assistant Registrar were clearly identified in her decision. That was not done and the Assistant Registrar's decision in respect of SG's case must, therefore, also be quashed.
186. Conclusions
187. It follows that the procedural irregularities in the cases of SG, VS, JW and JA were not cured and the Panel should therefore have stayed the allegations in those cases, as well as the allegations in the case of CL. For the sake of completeness I should mention that the defendant took a delay point in respect of the claimant's procedural ground of challenge in the cases of SG, VS, JW and JA. Since the claimant's challenge to the Assistant Registrar's decisions in those cases has succeeded on the substantive ground, the question of delay does not arise.
188. MR JUSTICE SULLIVAN: I think we dealt with costs on Friday. Are there any other applications?
189. MS MORRIS: No, my Lord.
190. MR JUSTICE SULLIVAN: Thank you very much, indeed.