England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/11/2010

Mr Justice Wyn Williams:

1. In these proceedings the Claimant challenges by way of judicial review decisions of the Defendant's Registrar to refer allegations made against the Claimant to the Defendant's Investigating Committee. The decisions under challenge are contained in documents dated 30 April 2009 and 26 August 2009.
2. I should say at the outset that the Defendant is the successor in title to the Royal Pharmaceutical Society of Great Britain. Nothing turns on that fact and I shall use the word Defendant to describe both the Society and the Council.
3. The relevant background is as follows. Between 2 May 2002 and 6 August 2006 the Claimant was employed as the superintendent pharmacist for a chain of pharmacies owned by Gordon Davis (Chemist) Ltd (hereinafter referred to as "Gordon Davis" or "the company"). The company owned approximately 30 pharmacies and was therefore involved in the supply of many millions of medicinal products each year.
4. The Claimant became the superintendent pharmacist in succession to Mr Alan Charles Rhodes; Mr Rhodes had been the superintendent pharmacist from July 1998 to 2 May 2002.
5. On or about 30 June 2006 Gordon Davis sold its business to Co-operative Pharmacies. About 6 weeks later the Claimant ceased to be employed as superintendent pharmacist. On the day after the Claimant had ceased his employment the Defendant received an email. The precise contents of the email are not known. However, it is clear that the author of the email alleged that Gordon Davis had been involved in deliberately reusing patient-returned medication and re-supplying it to customers.
6. As a result of that allegation the Defendant commenced an investigation. The investigation began under the auspices of Ms Susan Melvin, an Inspector of the Defendant. She began her investigation in relation to both the Claimant and Mr. Rhodes. It is also apparent that the investigation commenced by Ms Melvin was carried on in conjunction with a parallel investigation undertaken by Mr Aseltine of the Medicines & Health Care Products Regulatory Agency ("the Agency"). This joint investigation was in being because although the Defendant had statutory responsibilities in relation to registered pharmacy premises, registered pharmacists and the running of retail pharmacy businesses the Agency had similar powers in relation to certain other premises such as warehouses which are not registered pharmacies. Further, Mr. Simon Davis (the former managing director of Gordon Davis) was under investigation and it was the Agency which had regulatory powers in relation to Mr Davis since he was not a pharmacist.
7. Within days of the commencement of the investigation the Claimant became aware of its existence. On 6 September 2006 solicitors instructed on behalf of the Claimant and Mr. Rhodes wrote to the Defendant seeking information about the investigation. The solicitors wrote that rumours were damaging to their clients; that their clients would assist as much as possible in the investigation and that they would welcome a reply quickly.
8. Yet it was not until 30 April 2009 i.e. about 2 years and 8 months later that the Defendant's Registrar referred a Fitness to Practise allegation against the Claimant to the Defendant's Investigating Committee. As will become apparent this was, in effect, the first step on a road which might lead to an appearance by the Claimant before the Defendant's Disciplinary Committee. On or about the same date a similar referral was made in respect of Mr Rhodes.
9. The Claimant was not given notice of the referral immediately or even soon after the Registrar had made the referral. The Claimant was notified of the referral by letter dated 16 June 2009. Notice of referral was given on behalf of the Investigating Committee. By that date more than 2 years and 10 months had elapsed since the complaint to the Defendant had been received.
10. The notice of referral contained the allegations which were to be brought before the Investigating Committee. They were in the following terms.

"The Investigating Committee will consider the allegations set out below:

Particulars of allegations

Particulars of misconduct alleged against Stephen John Rycroft

That being registered with the Society on 1 August 1993

1(a) From 2 May 2002 to 6 August 2006, Mr Rycroft, in his capacity as Superintendent Pharmacist of Gordon Davis (Chemist) Ltd, did not ensure that pharmaceutical waste was segregated from pharmacy stock and delayed its transfer to disposal containers, contrary to Part 3 Service Specification 16(C) of the Code of Ethics & Standards; and

(b) From 2 May 2002 to 6 August 2006, Mr Rycroft, in his capacity as Superintendent Pharmacist of Gordon Davis (Chemist) Ltd, did not ensure the observance of all legal and professional requirements in relation to pharmaceutical aspects of the business, contrary to Part 2 A.2(a) of the Code of Ethics & Standards.

In that:

i) Mr Rycroft was the Superintendent Pharmacist for Gordon Davis (Chemist) Ltd from 2 May 2002 to 6 August 2006

ii) During Mr Rycroft's time as Superintendent Pharmacist he continued an existing practice whereby medication returned to the pharmacy by patients or care homes would be sent to the warehouse along with other pharmacy stock that was nearing its expiry date

iii) At the warehouse, stock that could be returned to the manufacturer for a refund would be separated out and patient returns would be sent back to the pharmacies for disposal in DOOP bins

iv) The practice of sending patient returned medication to the warehouse and then back to the pharmacies increased the likelihood of patient returned medication being returned to stock and supplied to patients

v) At the warehouse, patient returned medication was not adequately separated from pharmacy stock

vi) The practice of sending patient returned medication to the warehouse before sending it back to the pharmacies for disposal delayed its transfer to disposal containers

2. On a day or days during 2004-2005 when Mr Rycroft was Superintendent Pharmacist of Gordon Davis (Chemist) Ltd, he did not ensure that pharmacy stock was stored under suitable conditions in the warehouse contrary to Part 3.2(C) of the Code of Ethics & Standards

In that:

i) Mr Rycroft was Superintendent Pharmacist of Gordon Davis (Chemist) Ltd during 2004 and 2005

ii) As Superintendent Pharmacist Mr Rycroft was responsible for ensuring that pharmacy stock was stored under suitable conditions

iii) On a day or days in 2004-2005 there was a vermin infestation in the warehouse

(iv) On a day or days in 2004-2005 Mr Rycroft did not ensure that pharmacy stock in the warehouse was stored under suitable conditions in that vermin were chewing packs of medication

And the particulars of misconduct alleged, individually or cumulatively, may render Mr Rycroft's Fitness to Practise to be impaired by reason of misconduct."

11. As is apparent from the particulars of misconduct set out above the allegation that Gordon Davis was deliberately re-using patient-returned medicine and re-supplying it was not being pursued. The allegations made against the Claimant were of a different order.
12. At or about the same time, Mr Rhodes was also notified that allegations against him had been referred to the Investigating Committee. The details of the allegations made against him are not relevant to these proceedings.
13. These proceedings were commenced on 29 July 2009. Mr Rhodes was also a Claimant at that stage. By an order dated 13 August 2009 but sealed 25 August 2009 the parties consented to the claim being stayed pending reconsideration by the Defendant's Registrar of his decision of 30 April 2009. I will deal with the consequences of this order in detail later in this judgment.
14. On 26 August 2009 the Registrar made a second decision in respect of both Mr. Rhodes and the Claimant. He decided against referring allegations against Mr Rhodes to the Investigating Committee. However, he again referred the allegations of misconduct against the Claimant to that Committee.

The Relevant Statutory Provisions

15. Article 49 of the Pharmacists and Pharmacy Technicians Order 2007 (hereinafter referred to as "the Order") is in the following terms:-

"49-(1). Where –

a) an allegation is made to the Society against a registrant that his Fitness to Practise is impaired; or

b) the Society has information that calls into question a registrant's Fitness to Practise, but no allegation to that effect has been made against him to the Society,

the Registrar shall, except in such cases and subject to such considerations as the Council may prescribe, refer the matter (referred to in this article as "the allegation") to the Investigating Committee.

(2). Rules under paragraph (1) may in addition provide –

a) for the allegation to be referred instead, in prescribed cases, to the Disciplinary Committee or the Health Committee; and

b) that where the Registrar –

(i) refers a case to the Disciplinary or Health Committee; and

(ii) is of the opinion that the Committee to which he has referred the case should consider making an interim order under article 54,

he shall notify the Committee accordingly,

and where the Registrar does decide to refer an allegation to the Disciplinary or Health Committee under such rules, the Registrar shall inform the registrant who is the subject of the allegation and the person (if any) who made the allegation of that decision.

(3) Once a decision has been taken to refer the allegation to the Investigating Committee, or where rules so provide to the Disciplinary or Health Committee, the Registrar shall, as soon as reasonably practicable –

a) require from the registrant who is the subject of the allegation details of any person –

(i) by whom the registrant is employed or engaged to provide services in, or in relation to, any area of pharmacy, or

(ii) with whom he has arrangement to do so;

b) notify the Secretary of State, the Scottish Ministers, the Department of Health, Social Services & Public Safety in Northern Ireland and the National Assembly for Wales of the investigation of the registrant's Fitness to Practise;

c) if a registrant is a registered pharmacist, notify any person in Great Britain of whom the Registrar is aware –

(i) by whom the registrant concerned is employed or engaged to provide services in, or in relation to, any area of pharmacy, or

(ii) with whom he has arrangements to do so,

d) ….."

16. Article 50 of the Order specifies what is to occur when an allegation has been referred to the Investigating Committee by the Registrar. Article 50(1) imposes upon the Investigating Committee the duty to decide whether "the allegation ought to be considered by the Disciplinary Committee or the Health Committee." Article 50(2) specifies what the Investigating Committee may do in the event that it decides that the allegation need not be considered by a Disciplinary Committee or Health Committee. Article 50(3) provides as follows:

"(3) If the Investigating Committee decides that the allegation ought to be considered by the Disciplinary Committee or the Health Committee…..

a) the Investigating Committee shall refer the allegation –

(i) in the case of an allegation that the person concerned's Fitness to Practise is impaired by reason only of adverse physical or mental health, to the Health Committee,

ii) in the case of an allegation that the person concerned's Fitness to Practise is impaired by reason of adverse physical or mental health and by reason of other matters, to the Health Committee or the Disciplinary Committee, whichever one the Investigating Committee considers more appropriate, or

iii) in any other case, to the Disciplinary Committee;

b) ….

c) the Registrar shall inform the person concerned and the person who made the allegation, if any, of the Investigating Committee's decision to refer the allegation to the Health Committee or the Disciplinary Committee."

17. A registrant's Fitness to Practise shall be regarded as impaired for the purposes of the Order by reason only of the criteria set out in Article 48. "Misconduct" constitutes an impairment of a person's Fitness to Practise.
18. The Royal Pharmaceutical Society of Great Britain (Fitness to Practise and Disqualification etc Rules) Order of Council 2007 (hereinafter referred to as "the Rules") contain detailed provisions relating to the process by which an allegation may be brought, ultimately, before a Disciplinary Committee or a Health Committee. Rules 9 and 10 are concerned with the Registrar's consideration of a Fitness to Practise allegation and the steps he should take once he has taken a decision to refer such an allegation to the Investigating Committee. Rule 9 is important in this case and reads as follows:-

"9-(1) Where the Registrar is on notice of a Fitness to Practise allegation, after consideration of it, he shall not refer it to a Fitness to Practise committee if –

a) more than 5 years have elapsed since the circumstances giving rise to the allegation, unless the Registrar considers that it is necessary for the protection of the public, or otherwise in the public interest, for that allegation to be referred;

b) the complainant is anonymous, unless the Registrar has been able to establish a case that has a real prospect of a referral by the Investigating Committee under Article 50(3)(a) of the Order;

c) the identity of the registrant to whom the allegation is made is not known;

d) the allegation is of a type that the Council has stated in its published threshold criteria (as amended from time to time) should not be referred to the Investigating Committee.

Rule 9(2) is of no significance to the instant case. Rules 9(3) and 9(4) provide:-

(3) The Registrar's consideration of an allegation under paragraph 1….may include the carrying out of any investigations which, in his opinion, are appropriate to the consideration of it.

(4) Investigations referred to in (3) may include –

a) requesting the Society's employees to undertake further inquiries;

b) requesting the maker of the allegation to provide a written statement or statutory declaration;

c) instructing solicitors and inquiry agents; or

d) in the case of a Fitness to Practise allegation, requiring the registrant to agree to be medically examined by a registered medical practitioner nominated by the Society."

19. Rule 10 sets out what should happen when the Registrar has taken a decision to refer a Fitness to Practise allegation to the Investigating Committee. It provides that he shall send to the registrant concerned a notice of referral to the Investigating Committee; provide the registrant concerned with copies of all documentation, including summaries of relevant information, to be placed by the Registrar before the Investigating Committee and provide the registrant concerned with a copy of the published referral criteria of the Investigating Committee. Rule 10(2) specifies what must be contained in the notice of referral to the Investigating Committee. The notice must particularise the Fitness to Practise allegation, specify a date for the meeting of the Investigating Committee which will consider the allegation (which shall be no less than 28 days after the service of the notice of referral), inform the registrant of the Investigating Committee's powers; invite the registrant to indicate no later than 21 days after service of the notice whether the particulars of the allegation are admitted or denied and invite the registrant to provide written representations on the allegation and on any recommendations for disposal of the case made by the Registrar.
20. Part 3 of the Rules concern the procedures of the Investigating Committee and other issues related to the powers and duties of that Committee. Rule 12(5) provides:-

"The Investigating Committee shall not refer any –

a) Fitness to Practise allegation to the Health or Disciplinary Committee unless it is satisfied there is a real prospect that the Health or Disciplinary Committee will make a finding that the registrant's Fitness to Practise is impaired."

21. Rule 15 contains provisions which empower the Investigating Committee to reconsider Fitness to Practise allegations. Rule 15(1) to (3) contain provisions which permit reconsideration in cases where, initially, the Investigating Committee has not referred the allegation to the Disciplinary Committee. Rules 15(4) to (6) are in the following terms:-

"(4) The Investigating Committee may reconsider an allegation where it receives information that the Society has erred in its administrative handling of the case and it is satisfied that it is necessary in the public interest to do so.

(5) Where the Investigating Committee has decided to reconsider a Fitness to Practise allegation, the secretary to the Investigating Committee shall –

a) inform the registrant concerned and the person making the allegation, if any, of the decision to reconsider the allegation;

b) inform the registrant concerned and, where appropriate, the person making the allegation, if any, of any new evidence or information;

c) provide the registrant concerned and, where appropriate, the person making the allegation, if any, with copies of any new evidence and summaries of any new information received;

d) seek written representations from the registrant concerned and the maker of the allegation, if any, on –

(i) the decision to reconsider the allegation, and

(ii) any new evidence or information received (unless, in the case of a person making the allegation, if any, this has not been sent to him).

(6) Following reconsideration of the original allegation, the original referral to the Health or Disciplinary Committee may be rescinded in appropriate circumstances."

22. It is worth highlighting the effect of some of these provisions at this stage. First, once a Fitness to Practise allegation is made to the Defendant the Registrar must refer the allegation to the Investigating Committee except in certain prescribed circumstances. They are those set out in Rule 9 sub-paragraphs (a) to (d). Sub-paragraph (a) calls for the exercise of judgment on the part of the Registrar. Once he establishes that 5 years have elapsed since the circumstances giving rise to the allegation he must not refer the allegation to an Investigating Committee unless he considers it necessary for the protection of the public or it is otherwise in the public interest for referral to take place. In order to exercise that judgment he may carry out any investigation which is appropriate – his investigatory powers are wide ranging, see Rule 9(3). Once the Registrar has taken a decision to refer a Fitness to Practise allegation it his responsibility to send the registrant a notice of referral to the Investigating Committee and provide him with the information specified in Rule 10. The Rules contain no express provision which permits the Registrar to reconsider a referral or rescind it.
23. While I agree with the submissions of Counsel that the role of the Registrar in relation to Fitness to Practise allegations is a restricted one – he must refer the allegation to the Investigating Committee unless one of the sub-paragraphs in Rule 9 are satisfied – it is the Registrar who bears the onerous responsibility of deciding whether a referral should take place if more than 5 years have elapsed since the circumstances giving rise to the allegation. If the Registrar decides against referral in those circumstances there is no provision under the Rules for his decision to be reconsidered. If the Registrar decides to refer the allegation there is no express provision within the Rules which permits either the Investigating Committee or the Disciplinary Committee to consider afresh whether the referral ought to have taken place.
24. The role of the Investigating Committee is also a screening role although one with a much wider ambit. Article 50 of the Order provides that the Investigating Committee shall decide whether the allegation "ought to be considered by the Disciplinary Committee…" There are, however, some limitations upon this discretionary power. For example, the Investigating Committee can dispose of a Fitness to Practise allegation by issuing a warning instead of referring the allegation to the Health or Disciplinary Committee but only in those circumstances where Rule 13(3) is satisfied. It is of some note that the Investigating Committee is given express power to reconsider its decisions in relation to Fitness to Practise allegations – see Rule 15. In particular sub-Rule (6) confers upon the Investigating Committee the power to reconsider its decision to refer a Fitness to Practise allegation to the Disciplinary Committee and rescind it in "appropriate circumstances".
25. I turn to the grounds of challenge.

Ground 1

26. The Claimant contends that the Registrar was subject to an implied statutory duty to make a referral to the Investigating Committee under Rule 10 within a reasonable period. He submits that the Registrar, palpably, failed in that duty. He submits, further, that it is unnecessary that he demonstrates that he has been prejudiced by the Registrar's failure (although he also submits that he has, in fact, suffered considerable prejudice as a consequence of the delay in making the decision to refer the Fitness to Practise allegations to the Investigating Committee). These submissions, if made good, would apply both to the decision made on 30 April 2009 and to that made on 26 August 2009.
27. The basis for the Claimant's contention is the decision of Sullivan J (as he then was) in Gwynn v The General Medical Council [2007] EWHC 3145(Admin). The facts in that case were as follows. The Claimant, Mr Gwynn, was a consultant surgeon. On 31 March 2001 Mr Gwynn carried out a mastectomy on a woman known in the proceedings as CL. In a letter of complaint to the GMC, dated 28 October 2002, CL suggested 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 had consulted him again in June and July 2002 in respect of lumps on the site of her amputated breast Dr Gwynn was alleged to have made inappropriate and insensitive comments. CL's letter of complaint was considered by a caseworker in the Fitness to Practise Directorate of the GMC. In November 2002 the caseworker informed CL that no action would be taken against the doctor. The letter ended with the following paragraphs:-

"Once you've made a complaint through the above procedures [local 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 will be justified in looking into. We would need full details of your complaints and copies of all documents arising from both investigations.

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. Thank you for bringing this matter to our attention."

Dr Gwynn was not informed of this complaint by the GMC. He was first informed of the complaint when the Defendant sent a letter, dated 4 April 2007, to his solicitors. In due course Dr Gwynn became a subject of disciplinary proceedings before the Fitness to Practise Panel of the GMC. The allegations against him were that his Fitness to Practise was impaired by reason of deficient professional performance in respect of his conduct of breast surgery on 10 patients over a period from September 1997 to December 2003 and in the case of CL that his Fitness to Practise was impaired by reason of misconduct following such surgery. A hearing before the Panel in respect of all 11 complaints began on 29 October 2007. At the beginning of the hearing an application was made on behalf of Dr Gwynn that the proceedings in respect of 5 of the patients (including CL) should be stayed. The Panel rejected that application on 31 October 2007. Dr Gwynn applied, immediately, for judicial review of that refusal to stay.

28. As at the time of the hearing before the Panel, the GMC did not explain how CL's complaint in 2002 had been resurrected in 2007. Before Sullivan J the GMC adduced evidence which demonstrated, essentially, that the complaint had been resurrected because other complaints dating from the same time period had been made.
29. The principal submission made to Sullivan J by leading Counsel for Dr. Gwynn was that having closed the case alleged by CL against Dr Gwynn in 2002, the GMC had no power to resuscitate it and that even if such a power existed it was unfair or unreasonable to resuscitate it in 2007. Sullivan J considered this submission and the opposing submissions made by Counsel for the GMC (Ms Morris) in the following passages of his judgment:-

"21. 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 the 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:

"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 documents relating to the case submitted to the Council by any other person."

22. 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 a matter proceeded further, because in the Registrar's view a question of serious professional misconduct arose, then the 1988 Rules ensure 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 4 years after it had been closed, and to give the first notification of the complaint to the Claimant in April 2007, some 4¾ years after the matters complained of.

23. On behalf of the Defendant, Ms Morris submitted 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 4 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:

(1) An allegation shall initially be considered by the Registrar.

(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.

(3) Where –

a) the Registrar considers that an allegation does not fall within section 35(C)(2) of the Act; or

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, he shall notify the practitioner and the maker of the allegation (if any), accordingly.

(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 –

a) whether or not the allegation falls within section 35C(2) of the Act; or

b) the practitioner's Fitness to Practise.

(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 5 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."

24. Ms Morris submitted that since the complainant was notified of the complaint within 5 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 5 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 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 the case, can then wait for well over 4 years before reopening it and referring it to the Case Examiners. In this context, some assistance can be derived from rule 14 of the 1998 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 there should be no reference to the Professional Conduct Committee:

"…the Registrar, at any time within the 2 years following that determination or decision, receives information that the practitioner had been convicted in the British Isles of a criminal offence or has been convicted of an offence elsewhere which, if convicted in England or Wales, would constitute an offence or receives information or a complaint as to the practitioner's conduct.

(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."

25. It is difficult to see how a longer period than 2 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.

26. 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 4 or more years, before notifying the practitioner of the complaint.

27. For these reasons I conclude that:

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

(3) 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 4 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 overarching obligation under the rules to resolve complaints within a reasonable time in the interests of both practitioners and their patients."

30. Mr Dingemans QC submits that the overall effect of these passages was to impose upon the Registrar employed by the GMC a duty to make a referral to the medical screener within a reasonable time. In the event that he did not the referral fell to be quashed and the process stayed. He submits that if such an implied duty arises under rule 4 of the 2004 Rules governing the GMC there is no reason why such a duty should not arise under the rules governing the activities of the Defendant's Registrar and that a failure to act in accordance with the implied duty should be visited with the same consequences.
31. Mr Englehart QC, on behalf of the Defendant, does not accept that the decision in Gwynn supports the stance adopted by Mr Dingemans. He submits that the primary conclusion of Sullivan J was that it was unfair to Dr. Gwynn to resuscitate a complaint which had been considered and closed and when the GMC had specified the circumstances in which it would be permissible to reopen the complaint (which did not apply in Mr Gwynn's case). Mr Englehart QC submits that the passage in the judgment of Sullivan J which suggests that the GMC Rules implicitly require the Registrar to refer allegations to the medical screener within a reasonable time must be read in that context. Any other interpretation, submits Mr Englehart QC, would make the decision of Sullivan J in Gwynn fundamentally at odds with the earlier decision of Elias J (as he then was) in R (Gibson) v General Medical Council & Another [2004] EWHC 2781 (Admin).
32. In Gibson the Claimant was a retired medical practitioner. He became subject to disciplinary proceedings before the Professional Conduct Committee of the GMC for alleged professional misconduct. At the outset of the hearing before the Committee submissions were made on his behalf that the proceedings should be stayed. It was alleged on behalf of the Claimant that the delay in hearing his case was such that it would be an abuse of process, alternatively a breach of Article 6 of the ECHR, for the proceedings to continue.
33. There was a good deal of common ground between Counsel about the principles which fell to be applied. In the section of his judgment headed "Delays" Elias J sets them out. They are derived from a series of cases in the context of criminal proceedings but, nonetheless, it was common ground before the learned judge that the principles applied also in the context of disciplinary proceedings. The first principle identified by Elias J was that formulated in Attorney General's Reference (No 1 of 1990) [1992] 1 QB 630 to the effect that a stay should not be imposed even when unjustifiable delay was established unless

"The Defendant shows on balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words that the continuance of the prosecution amounts to a misuse of the process of the court."

The second principle identified by Elias J was that there could be circumstances which justified a stay even when the fairness of the trial itself was not in question but the delay was such that it would be unfair to try the accused. In relation to this principle Elias J said:-

"As to the second category, where it would be unfair to try the Defendant even although a fair trial would be possible, Lord Bingham said this would include cases of bad faith, unlawfulness and executive manipulation. But he also accepted that there could be cases where the delay was of such an order it would be unfair to continue the proceedings against the Defendant (paragraph 25). His Lordship emphasised that such cases would be "very exceptional" and that the stay would never be appropriate if any lesser remedy would adequately vindicate the Defendant's Convention rights."

(The reference to the speech of Lord Bingham in this passage is a reference to his speech in Attorney General's Reference (No 2 of 2002) [2004] 2 AC 72).

34. Counsel for the Claimant in Gibson also submitted to Elias J that in the case of disciplinary hearings it was unnecessary to establish prejudice as well as unjustifiable delay; unjustifiable delay on its own would be sufficient to found a stay. Elias J categorised the submission as a bold one and rejected it in the following passage of his judgment:-

"36. Both Counsel for the GMC and for the complainants contend there is no warrant at all for this distinction. As Mr Pushpinder Saini pointed out, disciplinary proceedings attract the safeguards of Article 6 because they involve the determination of a practitioner's civil rights and obligations:…. As Lord Bingham pointed out in Attorney General's Reference case to which I have referred, it would be absurd to apply Article 6 in the field of civil law so as automatically to stay proceedings where there has been unreasonable delay, since whilst that might protect the Convention right of one party, it would violate the Convention right of another. In this context it would mean that the legitimate concerns of the complainant that the alleged misconduct should be properly scrutinised by the professional body, would be ignored. I bear in mind the observations of Lightman J in R (on the application of) Toth v General Medical Council[2001] 1 WLR 2209, that both the legitimate expectation of complaints and the public confidence in the regulation of the medical profession require that the complainant should, in the absence of some special and sufficient reason, be publicly investigated. It would undermine that important principle if mere unreasonable delay, absent prejudice, were to require a stay to be granted.

37. Furthermore, not only is the argument in my view wrong in principle, it finds no support in any authority. Accordingly I reject the notion that there is some third category of disciplinary proceedings lying between criminal and civil proceedings to which this special rule, giving unique protection to the Defendant, is applicable."

35. I have reached the conclusion that there is no material difference in principle between the approach adopted by Sullivan J in Gwynn and that adopted by Elias J in Gibson. In Gwynn Sullivan J held that the GMC had no power to reopen a case against Dr Gwynn once they had closed it save in the circumstances which they themselves specified in the letter which records the closure decision. Additionally, however, he held that had such power existed it was subject to an implied obligation to reopen the case within a reasonable time so as to prevent Dr Gwynn from suffering unfairness. On the facts of the case Sullivan J was prepared to hold that the reopening of the case many years after closure when the delay could not be justified amounted to unfairness. In other words, the GMC had been guilty of unjustifiable delay and on the particular facts of that case it was unfair to continue with the disciplinary process.
36. In my judgment the decision in Gwynn is not authority for the proposition that delay of itself and without more can constitute a reason why a disciplinary body should be prevented from pursuing an allegation of misconduct by a professional who is subject to the body's discipline. I accept, of course, that Sullivan J was prepared to hold that it was implicit in the rules of the GMC that the Registrar should make a referral to a Medical Screener within a reasonable time. To repeat, however, Sullivan J was not holding that if the Registrar failed to make a referral within a reasonable time that of itself constituted a reason for imposing a stay of proceedings.
37. As I have said, viewed in this light, there is no inconsistency between the decision in Gibson and Gwynn.
38. I see no difficulty in proceeding on the basis that the Defendant's Registrar is under an implicit obligation to make a referral within a reasonable time. However, I do not accept that a failure to make a referral within a reasonable time amounts to a reason to quash the referral and stay the proceedings unless it is also established that the failure to act within a reasonable time has caused prejudice to such an extent that no fair disciplinary process is possible or that it is unfair for the process to continue.
39. Although the Claimant has identified aspects which clearly amount to prejudice in the way that this word is normally understood (not least the fact that allegations have been hanging over his head for far too long thereby causing him financial loss) Mr Dingemans QC was frank enough to concede that it could not be established that the delay was such that a fair hearing was not possible or that it was unfair to proceed against the Claimant.
40. On that basis ground 1 must fail. That said, I have no doubt whatsoever that there was inordinate and unjustified delay in making the decision to refer the allegations against the Claimant to the Investigating Committee. I do not deal with this aspect of the case in as much detail as would be necessary if my view of the law had been different but I should set out the main factors which lead me to my view.
41. First, the Registrar had accumulated sufficient evidence of alleged misconduct by November 2006 so as to make it appropriate to invite the Claimant to be interviewed under caution in that month. To be precise the Registrar had obtained no less than 9 witness statements all of which were relevant to the first of the two charges ultimately referred to the Investigating Committee. The Claimant agreed to be interviewed immediately he was asked and the interview under caution took place on 29 November 2006. Normally the interview under caution is the last step (or one of the last steps) taken before a decision about referral is made. As it happens further witness statements were taken in early 2007. The last witness statement relevant to the first charge was taken in April 2007. On that basis I have no doubt that by, say, the summer of 2007 the Registrar should have been in a position to reach a decision upon referral. After all something like 10 to 12 months had elapsed by that time.
42. Second, a recent survey undertaken by or on behalf of the Defendant suggests that a period of approximately 15 months is normally necessary for a serious complaint to pass "through the investigations and preparation stage and be heard by the investigating committee." This case took twice as long to get to the point of referral.
43. Third, the Agency conducted its investigation into Mr Davis and concluded it within approximately one year. While, obviously, the Defendant was engaged in an investigation of both Mr Rhodes and the Claimant that, alone, cannot possibly justify the period which went by before the Registrar made his decision. While I have no information before me as to the work load of the Agency no convincing reason has been advanced as to why the Agency was in a position to conclude its process by August 2007 but it was necessary or reasonable for the Registrar to take more than twice as long.
44. The Defendant attempts to justify the length of time taken between the beginning of the investigation and the referral to the Investigating Committee on 30 April 2009 by reference to the witness statement of Ms Berry Rose. I do not propose to analyse the statement in detail. I accept the submission of Mr Dingemans QC to the effect that the evidence provided by Ms Rose does not begin to justify the delay in this case. I should also record the fact Ms Rose did not commence work with the Defendant until 1 December 2008. Her evidence appears to be no more than a review of the available documentation. If it is not, it is hearsay. If the Defendant was intent upon justifying the delay in this case it should have filed evidence from the persons concerned in prosecuting the referral process. If that was not possible it should have explained why such evidence was not available.
45. The substance of the second charge laid against the Claimant was not raised with him in his interview under caution. Indeed the issue of vermin infestation in the period October 2004 through to 2005 was simply not raised at all in that interview. Yet the Registrar had taken a witness statement about this issue from Mr. Jonathan Nixon on or about 17 October 2006. This issue was first raised with the Claimant in a letter dated 19 January 2009. No explanation has been offered for this unhappy state of affairs.
46. I do not think it is appropriate for me to quash the referral of this allegation. I say that for this reason. On the basis of Mr. Nixon's witness statement this episode (or these episodes) occurred within 5 years of the referral to the Investigating Committee on any view. That is demonstrably so because the period of Mr. Nixon's employment was October 2004 to August 2005. Consequently the Registrar was bound to refer the allegation under the Rules. Whether the Investigating Committee considers it "ought" to refer the allegation to the Disciplinary Committee in the light of the unhappy history set out in paragraph 44 above remains to be seen but at the very least I can see powerful reasons why the test for a stay may be met.

The other grounds

47. Part of the conduct which, allegedly, impairs the Claimant's Fitness to Practise took place more than 5 years prior to the referral of that conduct to the Disciplinary Committee. I refer to that part of the first allegation which is said to have taken place between 2 May 2002 and 30 April 2004 or 26 August 2004 as the case may be. That being so it is common ground that the Registrar had to consider whether it was necessary for the protection of the public or otherwise in the public interest for the allegation to be referred. Further, Mr Englehart QC accepts that if the Registrar decided to refer the allegation he was obliged to give reasons for that decision.
48. In summary, Mr Dingemans QC submits that the Registrar gave no reasons for the decision which he made on 30 April 2009. All that occurred was that the Registrar's representative signed and dated a pro forma notice of referral. That pro forma contained the following:-

"More than 5 years have elapsed since the circumstances giving rise to the allegation, but notwithstanding this I consider it is necessary for the protection of the public, or otherwise in the public interest, for the allegation to be referred because:

The allegations are of a serious nature.

It is necessary to refer the allegations to the Committee to maintain public confidence in the profession."

49. As Mr Dingemans QC points out there is no attempt to explain why the allegations are serious or why it is necessary to refer the allegations to the Investigating Committee in order to maintain public confidence in the profession.
50. I accept, entirely, that the extent of the reasons to be provided is dependant upon the nature of the decision being taken. The Registrar had to decide whether or not to refer unFitness to Practise allegations which, in part, were more than 5 years old. In order to do so he had to address statutory criteria. In my judgment it was incumbent upon him to provide sufficient reasons to support his conclusion that the allegations were serious and that it was necessary to refer the allegations to the Investigating Committee so as to maintain public confidence in the profession.
51. Mr Englehart QC does not suggest otherwise. Indeed, in his oral submissions he did not seek to assert, positively, that sufficient reasons had been given for the decision of 30 April 2009. I am completely satisfied that the decision taken by the Defendant's Registrar to refer Fitness to Practise allegations to the Investigating Committee was unlawful since it was devoid of sufficient reasons. On that basis it was liable to be quashed.
52. However, when notice of the decision was given to the Claimant he did not move, immediately, to quash the decision. Quite properly what he did was to instruct his solicitors to send a pre-action protocol letter to the Defendant. The letter is dated 15 July 2009 and it was sent on behalf of the Claimant and Mr. Rhodes. It complies precisely with the pre-action protocol. It identified the Claimant's (and Mr. Rhodes') bases for alleging that the decision to refer was unlawful and ended with the following:-

"ACTION TO BE TAKEN

On behalf of our clients we seek your confirmation by 4.00pm on 29 July 2009 that you will agree to reconsider your decisions to refer the allegations against our clients to the Investigating Committee and/or that you will consent to an order quashing the decisions. Any reply should be sent to us at the address above, quoting our reference.

If you are not willing to give the confirmation sought above, please let us know the name, address and reference of any solicitors instructed to accept service of Judicial Review papers on your behalf."

53. By letter dated 27 July 2009 the Defendant's solicitors responded. The important paragraphs of their letter in response are these:-

"In the penultimate paragraph of your letter you seek reconsideration of the decisions to refer the allegations against your clients to the Investigating Committee and/or consent to an Order quashing the decisions. We are instructed to inform you that the decisions against your clients will be reconsidered. Reconsideration will be by the Registrar. We are instructed that you and your clients will receive notification of the Registrar's decision by the end of August 2009.

In view of the confirmation given above, it will not be necessary for you to issue the Judicial Review application you have indicated you are in the process of preparing."

I should say for completeness that the letter did not admit any of the allegations of unlawfulness which had been set out in the pre-action protocol letter.

54. On 29 July 2009 the Claimant's solicitors responded thus:-

"We write further to your letter 27 July 2009. It is our clients' case that the Registrar's decision to refer the allegations to the Investigating Committee was unlawful due to the inadequacy of reasons given for waiving the 5-year rule, together with excessive delay in bringing Fitness to Practise proceedings.

Our clients require not only that the referral be rescinded, but also that no further referrals should be made. It is not sufficient merely for your client to reconsider the matter and make a further referral waiving the 5-year rule. We should be grateful to receive your assurance that no further referral will be made by the Registrar.

In order to protect our clients' position we have today issued Judicial Review proceedings. Please confirm by 31 July 2009 whether you are instructed to accept service of proceedings on behalf of your client, failing which we will service the proceedings on the Society."

55. The Defendant was not prepared to confirm that the referrals would be "rescinded" and that no further referrals would be made. It is against this background that the Claimant's solicitors suggested that the judicial review which had been issued should be stayed pending the "Registrar's further consideration of the complaint" (see letter dated 3 August 2009). Ultimately on 13 August 2009 the parties signed a consent order which was then filed at court together with a note from the Defendant. The relevant terms of the order are as follows.

"BY CONSENT IT IS ORDERED THAT:

1. The Claim be stayed pending notification from the Defendant that the Registrar to the Royal Pharmaceutical Society of Great Britain has reconsidered the decisions dated 30 April 2009 to refer the Fitness to Practise allegations against the Claimants to the Defendants' Investigating Committee.

2. The Registrar will reconsider the decisions referred to in paragraph 1 by 31 August 2009.

3. Notification of the outcome of the Defendant's reconsideration will be sent to the Claimants by no later than 31 August 2009."

56. Upon reconsideration, as I have said, the Registrar decided against referring the Fitness to Practise allegations made against Mr Rhodes to the Investigating Committee. However, he decided to refer the allegations made against the Claimant to the Committee.
57. The reasons why he reached that conclusion are set out in a letter dated 26 August 2009. Essentially, the Registrar decided to refer the allegations because he believed it was necessary for the protection of the public and it was otherwise in the public interest for the allegations to be referred. He gave reasons for reaching each conclusion. At first blush it is difficult to see what it is about this decision which would render it unlawful.
58. Mr Dingemans QC, however, submits that it is unlawful because it failed to take into account a material consideration namely the unjustifiable delay which occurred between the commencement of the investigation and the referral. In relation to this decision the period of delay was, effectively, 3 years and, as I have found, a good deal of that delay was unjustified. Yet that delay is not even mentioned in the Registrar's letter of 26 August 2009.
59. Mr Englehart QC submits that the Registrar had regard to all the matters before him, including the alleged delay. He says that is apparent from the Registrar's reasons which acknowledge the submissions made on behalf of the Claimant. The acknowledgment to which Counsel refers is the assertion in the Registrar's letter that he considered the Claimants' solicitor's letters of 15 and 16 July and a note prepared by Ms Morris and provided to him for the purposes of assisting him to make a decision about referral.
60. There can be no doubt that the letter of 15 July 2009 raises squarely the issue of delay. Indeed, there is specific reference within the letter to the decision in Gwynn. It is also clear that Ms Morris identified delay as a potentially relevant factor. I refer, specifically, to paragraph 5 of her note in which she identifies a number of factors which may be relevant to the issue of whether it was necessary for the allegations to be referred. At sub-paragraphs i), j), and k) she identifies the length of any delay; the reasons for any delay and the extent to which a registrant has been prejudiced by any delay and, if so, the extent to which such prejudice may be mitigated.
61. It seems to me to be clear that the Registrar must have had well in mind the issue of delay in this case. In my judgment that is so notwithstanding it is not mentioned, expressly, in the letter of 26 August 2009. It is not difficult to understand why there is no mention; the Registrar inevitably had to focus upon whether to refer notwithstanding the fact that there a period of at least 5 years had gone by. Delay between the date of the alleged misconduct and referral was a necessary pre-condition for his decision. He obviously reached the conclusion that notwithstanding the delay it was necessary for the protection of the public and otherwise in the public interest to refer the allegations. I do not accept that the decision to refer taken on 26 August 2009 was unlawful because it failed to have regard to a material consideration.
62. That leaves the issue of whether it was permissible for the Defendant to make this second decision.
63. It seems to me to be necessary first to consider whether the Defendant had power under the rules to consider for a second time whether allegations should be referred. As I have said, the rules are silent on the point. However, it is of significance that express powers of reconsideration are conferred upon the Investigating Committee (see Rule 15 paragraph 21 above). It is difficult to understand why express powers of reconsideration were not given to the Registrar if that is what the rules intended. I have reached the conclusion that the rules do not permit the Registrar to reconsider a decision to refer in circumstances such as in the present case.
64. In my judgment, however, that is just the starting point. The reality is that the Claimant invited the Defendant to reconsider the decision of 30 April 2009; he then invited the Defendant to consent to an order for a stay of the proceedings which order also directed the Defendant to reconsider its decision. An order was made by this court by consent.
65. Upon reflection I can see no reason why it should be said that this court had no power to direct the Defendant to reconsider its decision. Such a direction is commonly given when an order is made quashing an initial decision and no doubt could have been made if the first decision in this case was quashed. I can think of no reason in principle why the quashing of the first decision in this case was a necessary pre-condition for this court to have jurisdiction to direct a reconsideration.
66. The instant case is distinguishable from Essex Incorporated Congregation Church Union v Essex County Council [1963] AC 808 and Rydqvist v Secretary of State for Work & Pensions [2002] EWCA Civ 947. In those cases an attempt was made by the parties to confer jurisdiction upon the Lands Tribunal (in the Essex case) and the Social Security Appeal Tribunal (in the Rydqvist case). The House of Lords and the Court of Appeal, respectively, held that the parties could not by their consent confer jurisdiction upon a Tribunal which was entirely a creature of statute and when the statutory provisions conferring jurisdiction upon the Tribunal did not permit of the determination which the parties sought by consent. To repeat, that is not this case. In this case the parties have invited the court to exercise a power which was within its jurisdiction.
67. In my judgment, therefore, the Defendant's Registrar did not act unlawfully when he reconsidered whether to refer the Fitness to Practise allegations made against the Claimant to the Investigating Committee. He did so under the authority of a lawful order of this court.
68. Even if this analysis is wrong, however, and the Registrar had no power to reconsider his decision in the absence of an order of this court quashing the initial decision that does not mean that it would be appropriate to grant any relief in relation to the second decision. The plain fact is that the second decision would have been lawful if a quashing order had been made in respect of the first decision. A quashing order could now be made since, as I have said, the decision was unlawful for lack of sufficient reasons. However, there would be no useful purpose to be served by me making a quashing order in respect of the decision of 30 April 2009 now thereby paving the way for a further reconsideration by the Defendant when the outcome, inevitably, will be a decision in keeping with the decision of 26 August 2009.

Alternative remedy

69. I do not propose to deal with this issue in any detail. Had I been satisfied that ground 1 was made out I would not have considered it appropriate to refuse a quashing order on the basis that the point encapsulated in ground 1 could be taken before the Investigating Committee. There are two principal reasons why I reach that conclusion. First, I can see no reason why judicial review should not be available at this stage for much the same reasons as were given by Gibbs J in R (Peacock) v General Medical Council [2007] EWAC 585 (Admin). It is true that Gibbs J was grappling with the "5-year rule" contained within the GMC Rules which also provided that exceptional circumstances should exist before a referral should take place more than 5 years after the events complained of. The essential point, however, is that Gibbs J was grappling with the threshold criteria for referral from the Registrar. The Registrar in the instant case was also grappling with the threshold criteria in the Defendant's Rules. It is clear that Gibbs J relied upon the reasoning of Toulson J (as he then was) in R (Ghosh) v Northumberland NHS Care Trust [2006] EWAC 26 (Admin) to the effect that the court had jurisdiction to intervene at an early stage in disciplinary proceedings and would do so if it was necessary to secure fairness. Applying that approach and had ground 1 been established it would have been appropriate for this court to intervene. I am much less sure that this would have been my approach on the reasons challenge but, in my judgment, this point is better considered if it arises squarely for decision in any given case.

Conclusion

70. While I accept that the decision of the Registrar of 30 April 2009 was unlawful, since it did not contain a sufficiency of reasons, no other ground of challenge is made out. Upon my analysis, the decision of 26 August 2009 was lawful; there has been a lawful referral of the Fitness to Practise allegations to the Investigating Committee. That means that overall this challenge fails.