For many GPs who face a complaint, even when the GMC rules in their favour it can cause enduring harm to their reputation. But for those wanting to make a libel claim, the time within which you could make the claim after the damaging incident (the limitation period) is restricted to a year, with judges rarely setting aside this period. However, GMC investigations tend to take much longer than that, leaving the medical professional with no way to restore their reputation once they have been vindicated by the GMC, often having to labour under a cloud for the remainder of their working lives.
Fortunately, a new decision in the London High Courts of Justice has signalled a willingness on the part of the courts to apply a degree of discretion in these types of cases. In the recent case a registrar, Dr Abdel-Bari, issued proceedings for libel outside the one year limitation period against the Nottingham University Hospitals NHS Trust. Dr Abdel-Bari’s locum period was terminated a day early by the hospital as a result of witness evidence that he had unnecessarily examined a heavily pregnant female patient in a painful manner that left her in a distressed state.
As the GMC investigation was to uncover, the damning statement that formed the basis of the original complaint, which was made by a midwife, was not only contradicted by the patient in question but also by the midwife herself, who had not intended the statement to be relied upon in any formal capacity and could not recall the events that she described in her statement.
Naturally once the investigation had run its course the complaint against Dr Abdel-Bari was dismissed. The defamatory statement was dated June 2013. The doctor did not become aware of its existence until late December 2013 and it was not until June 2015 that the GMC advised the doctor that the complaint against him would not be upheld.
The courts can exercise discretion in certain circumstances to set aside the limitation period, however, these tend to be the exception. In Dr Abdel-Bari’s case the Judge held that an equitable outcome would mean allowing his claim to proceed despite the fact that he had issued out of time. She intimated that it was not unreasonable of him to await a GMC decision before embarking on any additional disputes.
There is hope, therefore, that this decision signals a degree of sympathy on the part of the courts as to the long wait that doctors often face when they are the subject of regulatory investigations and that in future libel claims issued outside the usual one year limitation period could be permitted to proceed, subject to the circumstances of each particular claim.
Kathy Mathews is a defamation specialist at Johnsons Solicitors
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