Q, R (On the Application Of) v General Medical Council

Factual and Procedural Background

This case concerns the application of Rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004, known as the "five year rule," which prohibits allegations proceeding if more than five years have elapsed since the most recent events giving rise to the allegation, unless exceptional circumstances justify proceeding in the public interest.

The Claimant, a general practitioner referred to as Plaintiff, is subject to two separate investigations by the Defendant, Company A, arising from complaints made by a patient, referred to as MV, regarding treatment in 2008 and 2013. The judicial review proceedings focus solely on the 2008 allegation.

MV was treated by Plaintiff on three occasions in 2008, with the last consultation on 22 May 2008. A complaint was later lodged by a relative of MV, referred to as JM, on 26 July 2013, but incorrectly stated the dates of consultations as occurring in August 2008 rather than May 2008.

The Assistant Registrar at Company A examined the complaint and concluded that the five-year rule was not engaged, based on the incorrect date of August 2008. The case proceeded through the Fitness to Practise procedure despite the actual date of the last event being outside the five-year limit.

Plaintiff’s solicitors pointed out the factual error, requesting Company A to reconsider the decision, but Company A refused to revisit the initial decision. Plaintiff then issued judicial review proceedings challenging Company A’s application and refusal to reconsider the five-year rule decision.

Legal Issues Presented

1. Whether, and in what circumstances, the five-year rule under Rule 4(5) is engaged.
2. Whether, and in what circumstances, Company A may revisit a decision taken under Rule 4(5).
3. Whether the procedure adopted by Company A in this case was unfair.

Arguments of the Parties

Plaintiff's Arguments

• The five-year rule raises a question of precedent fact requiring the Registrar to assess the actual dates of the events giving rise to the allegation, not merely the alleged dates stated in the complaint.
• The Registrar erred in relying on incorrect dates provided by the complainant and failed to apply the five-year rule correctly.
• Company A unlawfully refused to reconsider its Rule 4(5) decision after being notified of the material factual error.
• The procedure was unfair because Plaintiff was not given a properly informed opportunity to make representations regarding the Rule 4(5) decision and Company A failed to acquaint itself adequately with relevant factual material before making the decision.

Defendant's Arguments

• The five-year rule protects doctors from long-delayed allegations and relates to the alleged events as stated in the complaint, not the actual events as subsequently determined.
• The Registrar correctly concluded the five-year rule was not engaged based on the complaint before her and appropriately referred the matter to Case Examiners.
• The Registrar has no power or obligation to reconsider a referral decision under Rule 4(5) absent a court order.
• There was no procedural unfairness since the dates in the complaint were clear and did not raise cause for concern, and Plaintiff was provided sufficient reasons to understand the decision.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
D v. GMC [2013] EWHC 2839	Principles applicable to Rule 4(5) and the five-year rule as a safeguard against long-delayed complaints.	Used to confirm the limited and exceptional nature of circumstances allowing complaints beyond five years.
Peacock v. The General Medical Council [2007] EWHC 585 (Admin)	No satisfactory remedy later in proceedings for wrong Rule 4(5) decisions.	Supported the view that the five-year rule is a distinct safeguard.
Gwynn v. The General Medical Council [2007] EWHC 3145 (Admin)	Requirement for exceptional circumstances and public interest for proceeding beyond five years.	Confirmed the strict interpretation of Rule 4(5).
Rita Pal v. GMC [2009] EWHC 1061 (Admin)	Registrar's limited function at Rule 4 stage; reliance on complaint dates as prima facie evidence.	Supported that Registrar may rely on complaint dates unless reasonable doubt arises.
R (A) v. Croydon London Borough Council [2009] UKSC	Precedent fact and objective questions of fact in administrative decisions.	Supported argument that Rule 4(5) engages precedent fact requiring correct factual assessment.
March v. Secretary of State for the Home Department [2010] EWHC 765 (Admin)	Material error of fact as error of law allowing court intervention.	Supported intervention where fundamental factual error affects decision.
R (Anufrijeva) v. Secretary of State for the Home Department [2003] UKHL 36	Power of administrative bodies to reconsider decisions under certain circumstances.	Referenced in discussion on whether Registrar was functus officio.
Fajemisin v. General Dental Council [2013] EWHC 3501 (Admin)	Inherent power of public bodies to revisit decisions based on fundamental mistake of fact.	Adopted to support power to correct fundamental errors in Rule 4(5) decisions.
R (Hibbert) v GMC [2013] EWHC 3596 (Admin)	Limits on power to reconsider referral decisions absent court order.	Defendant relied on it to argue no power to reconsider; court distinguished it.
R (Rycroft) v Royal Pharmaceutical Society of Great Britain [2010] EWHC 2832 (Admin)	Registrar functus officio after referral decision.	Considered but distinguished as not addressing fundamental mistake of fact.
Akewushola v Secretary of State for the Home Department [2000] 1 WLR 2295 (CA)	Scope of public authority's power to review own decisions.	Discussed in context of correcting fundamental errors.
Jenkinson v NMC [2009] EWHC 1111	Review powers of statutory bodies.	Referenced regarding reconsideration powers.
R (B) v Nursing and Midwifery Council [2012] EWHC 1264 (Admin)	Limits on review powers of regulatory bodies.	Referenced in discussion on reconsideration.
Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39	Principles of good administration and proportionality in administrative law.	Supported the existence of broad corrective principles in administrative decisions.
R(Plantagenet Society) v Secretary of State for Justice [2014] EWHC 1662	Good administration and powers to correct fundamental errors.	Supported broad corrective principle in administrative law.
Bell v. Lever Bros [1932] AC 161	Fundamental mistake in contract law.	Analogous principle applied to administrative decisions.
R (Gannon) v General Medical Council (Claim No. CO/613/2015)	Registrar functus officio in Rule 4 decisions.	Distinguished as not addressing fundamental mistake of fact correction.
Taylor v. Lawrence [2003] QB 528	High Court's power to reopen appeal procedure to prevent injustice.	Supported principle of correcting fundamental mistakes.

Court's Reasoning and Analysis

The Court identified the key issue as the proper construction of Rule 4(5), focusing on whether the five-year rule is an objective question of precedent or jurisdictional fact. It concluded that the rule requires assessing the actual dates of the most recent events giving rise to the allegation, not merely the dates alleged in the complaint. The Registrar is entitled to take the complaint's dates at face value as prima facie evidence but must investigate if reasonable doubt arises.

The Court held that the five-year rule's first limb is a binary, objective question, distinct from the discretionary public interest exception in the second limb. Therefore, the Court found that the Registrar erred by relying on an incorrect date provided in the complaint and failing to apply the five-year rule correctly.

Regarding the power to reconsider, the Court recognized a broad corrective principle in administrative law allowing public bodies to revisit and revoke decisions based on fundamental mistakes of fact. It rejected the argument that the Registrar was functus officio and held that Company A had the power and duty to correct the fundamental error once it was discovered.

On procedural fairness, the Court found no error in the Registrar's reliance on complaint dates without detailed investigation at the triage stage, given the volume of complaints and the filtering purpose of Rule 4. There was no obligation to provide Plaintiff an opportunity to make representations on the Rule 4(5) decision absent special cause for doubt.

Holding and Implications

The Court's final decision is IN FAVOUR OF THE PLAINTIFF. It held that the question of whether more than five years have elapsed since the actual date of the most recent events is an objective question of precedent fact. The Registrar's original decision was based on a fundamental and material error of fact, and Company A's refusal to reconsider that decision was unlawful.

The Court quashed the original Rule 4(5) decision and remitted the matter to the Registrar for reconsideration applying the correct factual date.

The direct effect is that the five-year rule must be applied correctly based on actual event dates, and Company A must revisit decisions affected by fundamental factual errors. No new legal precedent was created beyond reaffirming existing corrective principles in administrative law and clarifying the application of Rule 4(5).