When does delay in fitness to practise proceedings become unfair? High Court considers seven-year NMC case

Overview

• GMC analysis of 10 years of fitness to practise cases identifies the factors most strongly associated with severe regulatory outcomes.
• Criminal convictions, concern severity, allegation type and referral source were the strongest predictors of serious fitness to practise sanctions.
• The research found regulatory outcomes are driven principally by the nature and seriousness of the concerns raised about a doctor.

Doctors concerned about how fitness to practise decisions are made may find reassurance in a major new analysis from the General Medical Council (GMC), which suggests that the strongest predictors of the most severe regulatory outcomes are factors relating to the nature of the case itself rather than a doctor’s personal characteristics.

The research examined ten years of data from the GMC and the Medical Practitioners Tribunal Service (MPTS), analysing decisions across the fitness to practise process to identify which factors were most closely associated with serious outcomes.

The findings were clear. The factors most strongly associated with the most severe regulatory outcomes were:

• Criminal convictions
• The seriousness of the concern
• The type of allegation
• The source of the referral

For practising doctors, these findings are likely to be the most significant aspect of the study. The analysis indicates that fitness to practise outcomes are driven principally by the seriousness and nature of the concerns being considered. Cases involving criminal conduct, more serious allegations, particular categories of concern, or referrals from specific sources were found to have the strongest statistical relationship with severe regulatory outcomes.

The study examined decisions at triage, case examination and tribunal stages, considering a wide range of factors recorded within fitness to practise case data. These included allegation type, referral source, specialty, place of qualification, socio-economic indicators and protected characteristics.

When does delay become a legal issue?

The legal framework considered by the High Court derives from the right to a hearing within a reasonable time under Article 6 of the European Convention on Human Rights.

In considering the impact of delay, the Court applied the approach in Okeke v Nursing and Midwifery Council [2013] EWHC 714 (Admin), which requires consideration of the length of the delay, the complexity of the case, the reasons for the delay, the conduct of the parties and the consequences for the fairness of the proceedings.

Importantly, the Court recognised that a stay of proceedings for delay should only be imposed in exceptional circumstances. The registrant must establish, on the balance of probabilities, that the delay has caused such serious prejudice that a fair hearing can no longer take place.

The assessment is not simply about the number of years involved. It is about what has happened during those years and the effect on the ability to determine the allegations fairly.

For example, lengthy delays may create difficulties where:

• Witnesses have become unavailable or their recollections have materially deteriorated.

• Relevant records, documents or other evidence have been lost or destroyed.

• The registrant’s ability to obtain evidence or properly challenge allegations has been compromised.

• The passage of time has materially prejudiced the ability to present an effective defence.

• The proceedings have become oppressive or their continuation would otherwise offend the interests of justice.

The High Court’s judgment is particularly interesting because it acknowledged that the case was not especially complex and that some of the delay was attributable to shortcomings in case management. Nevertheless, it concluded that the available evidence remained sufficient to permit a fair determination.

The Court also distinguished the circumstances from Okeke, where a delay of approximately four and a half years had resulted in a breach of Article 6 rights. The different circumstances and consequences of the delay were material to the outcome.

A wider regulatory problem

The issue is not confined to the NMC. Delays in fitness to practise investigations and proceedings have been repeatedly identified by the Professional Standards Authority (PSA) as a concern across the healthcare regulatory landscape.

In its 2024/25 Annual Report, the PSA reported that seven of the 10 statutory healthcare regulators it oversees had failed to meet Standard 15 of its Standards of Good Regulation, which concerns the timely progression of fitness to practise cases. The PSA specifically identified the time taken to complete cases as the primary reason for the failure.

What does this mean for registrants and regulators?

The judgment does not establish that a seven-year investigation is acceptable, nor does it create a period beyond which regulatory proceedings automatically become unfair.

Instead, it reinforces the need for a fact-specific assessment of the consequences of delay.

For registrants, the important distinction is between demonstrating that proceedings have taken an unreasonable length of time and establishing that the delay has caused identifiable prejudice. An application to stay proceedings will need to address the actual impact on the fairness of the case, rather than relying solely on the chronology.