The General Medical Council (GMC) does not usually investigate allegations that are more than five years old but does this rule pose a public safety risk?
The GMC’s fitness to practise rules set out in law. Rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004 state:
“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 for it to proceed.”
Under what has become known as the “five-year rule”, no allegation against a doctor should proceed further if more than five-years have elapsed since the actual date upon which the most recent events giving rise to the allegation took place.
It is worth saying that the Courts have confirmed that “The date upon which an event or an alleged event took place (as opposed to the event itself) is an objectively verifiable fact.” It therefore flows that it is also open to the GMC to review a decision under Rule 4(5) – i.e. a decision to consider or discount an allegation.
The Court ruling stems from a case in 2015 where a Dr Chaudhuri allegedly misdiagnosed a patient who he saw on three occasions in 2008.
On 26 July 2013, a relative of Patient A lodged a complaint against the doctor with the GMC. In the complaint letter it was stated that Dr C saw the patient on three occasions in April, June and August 2008.
When the complaint was received by the GMC, it initially concluded that on the allegation dates, the five-year rule was not engaged but this was based on wrong information. Further information revealed that the last consultation had in fact been on 22 May 2008, which was over five years. However the GMC refused to reconsider its initial decision despite the error being pointed out to them.
Consequently, Dr Chaudhuri brought a Judicial Review claim against the GMC. The High Court (and subsequently Court of Appeal) quashed the GMC decision.
Under the “5 year rule”, “No allegation shall proceed ...unless the Registrar considers that it is in the public interest for it to proceed.”
What constitutes “public interest” is not explicitly defined. Generally speaking though, allegations relating to significantly serious conduct would be considered such as matters relating to fraud and sexual misconduct.
The test applied by the GMC is: “does the public interest warrant this allegation being proceeded with, despite the fact it is late?”
Since the test is subjective, it has come in to some criticism.
Most recently, Peter Walsh, Chief Executive of Action against Medical Accidents (AvMa) wrote:
“The ‘five year rule’ currently used by the General Medical Council is a dangerous anomaly and should be scrapped. Every fitness to practise case should be assessed objectively, just as most regulators currently do. There have already been some egregious failures of the system whereby doctors whose fitness to practise was still very much in question, have managed to evade even investigation due to this rule.”
Despite the criticism, “Rule 5” provides doctors with protection against:
It is clear that the GMC’s “rule 5” offers doctors certain protection against old allegations. However, key to this is expert legal advice and representation. A thorough consideration of the merits of your case can mean the difference between an early resolution or a potentially extended fitness to practise investigation.
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If you have been notified by the GMC that you’re under investigation or are facing difficulties with your registration, contact me today for an initial free and no obligation consultation on 0207 060 1983 or Stephen.McCaffrey@kingsviewchambers.com.